Not too long ago I was introduced to a friend of a friend at dinner. After the usual small talk, the conversation predictably turned to “What do you do for a living?”. You should know that I dread this question. My closest family and friends still don’t fully understand my career after 17 years. For this reason, I asked the question first and found out I was speaking with a Federal judge before whom I had never appeared nor ever worked with. I wasn’t going to let this opportunity pass until my new acquaintance was out of patience with my questions. Luckily the judge was very patient and forthcoming. Our conversation spanned several topics but here are my key eDiscovery takeaways.
1. eDiscovery communication between judges is on the rise.
The judge recalled several situations that involved eDiscovery. We discussed how frustrating it was (as recently as 3-5 years ago) to rule on pleadings specifically geared for eDiscovery. One side said one thing, the other side said another, and their arguments were miles apart. This left the judiciary in the position of choosing sides, as the vast differences left little hope for meet and confer success. We spoke of how the spirit of cooperation amongst judges has helped fill the knowledge gap. This isn’t necessarily new or unusual, but it wasn’t that long ago that some judges I encountered were hoping eDiscovery would either go away or that all the eDiscovery cases be assigned to the youngest judge. Because of this increased communication, the experts and attorneys who use their eDiscovery knowledge to educate the court are appreciated and heard.
2. The eDiscovery education gap between attorneys, their experts and the Court is narrowing.
Judges are no longer afraid to ask for help. Instead, more and more of them are seeking education on eDiscovery matters. The questions of, “What is possible?” and “What is unduly burdensome?” are being demystified. My paraphrased version of what I learned is simple and makes a lot of sense. With more and more cases involving text messages, instant message, direct messages as well as email and other ESI, the judges understand that staying on top of the technology is becoming more important each day. This is not to say the judges were unsure of what the FRCP allows. This is more of an acknowledgement that technology and the way we communicate are changing much faster than any case law or the FRCP can keep up with. Additionally, I was interested to hear of their willingness to embrace the idea of hiring consultants to answer specific case-related questions. This serves to build the institutional knowledge and provides for a fair and just experience for all parties.
3. If you are going to make a claim of proportionality, burden or ask for a motion to compel, it’s best to show your work up front.
My favorite takeaway was learning that we shared a mutual frustration with arguments about the cost to collect, review and produce ESI without specific information about the methodologies used. Making an argument that requests are not proportional, or that being required to restore and archive is unduly burdensome are still sometimes made without supporting details, much less an affidavit from an eDiscovery expert. Even affidavits from IT professionals and eDiscovery experts are still submitted using undisclosed objective data reduction techniques (deduplication, date range restriction, keyword searching, file type filtering, etc.), but claiming concrete cost estimates and time burden. We spoke about the “expectation that you show your work, and if you don’t, we are curious if there’s something to hide”.
As technology continues to emerge at lightning fast rates, it is more important than ever to keep an open mind regarding what is possible today and what may be possible tomorrow. The fact that there seems to be momentum building and a thirst for knowledge from the bench tells me that the rest of us must follow … even if we’re kicking and screaming.
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