Carolyn Depko, director of media relations for Edge Legal Marketing, session notes from the Masters Conference 2010.
Judicial Expectation in
e-Discovery
Day 1
Speakers:
Judge Joy Conti - JC
Judge John M. Facciola - FAC
Q – How much of a
problem is e-discovery for you?
JC – Certainly in some cases it’s a big problem. BUT the key
is having an open dialogue. Open dialogue
is very important. Having provisions in place is also important. Her court’s 26F report includes specific
questions and a check list regarding discovery and preservation. Unfortunately
today many attorneys are not taking seriously the issues that can come up
during discovery.
FAC – On the Federal level, experiences
particular aspects and developments unique to the government and government
involvement. Several being 1) the U.S.
as a defendant 2) the gov’t as a holder of a lot of information in cases &
suits and 3) the gov’t as the “demander” of information.
FAC – A trend and a more frequent occurrence of Judges
questioning the amount of money that is being spent on e-discovery and
wondering WHY the money and time is being spent. Is it worth it?
JC – Education for Judges is key and welcomed. She loves groups such as “Friends of
e-Discovery” and any program available to her and fellow judiciary colleagues
that help to educate and keep her abreast of technological developments, e-discovery
processes and methodologies used in capturing data and search and e-discovery
tools.
JC – Highly recommends getting to know the judges on your
state and federal benches. Reach out to
a couple about opportunities to meet with them and discuss e-discovery issues
and developments. Hopefully those couple can get their colleagues
involved. Education is important to the
judicial community.
KEY/top-of-mind
topics and issues: Cooperation and proportionality
JC – Cooperation is something Judges can take more control
of and get involved in earlier. Proportionality – the parties need to discuss
first and then go to the judge with issues and opinions on costs and
requests.
It’s important to come with the mindset of cooperation. It
saves A LOT of time and Money. It just
makes sense. Parties need to BE PRACTICAL.
What needs to be considered: What is the most economical way to get the
information we need in this case.
FAC – Commenting on the issues that arise when the two
parties are not on the same level of “understanding” in terms of the technology
available. When the levels of knowledge regarding the e-discovery process,
tools and costs are very different – it can create a lot of issues and the
judges often need to step in and make suggestions about methodology and solutions.
The difference in knowledge is a deterrent to cooperation because one party
just “doesn’t get it.”
Development of a Special Masters Board where the members
will work pro bono to mediate and educate parties in a case on e-discovery
processes available and get some agreement.
Q – In terms of the duty to preserve for corporations, are
you seeing that issue come up more or how are you currently handling the
preservation issues?
JC – Companies need to handle/discuss preservation in the
cooperation stage. And if there’s an issue with preservation and agreeing on
terms it is important to come to the court with the issues early. The earlier
the better to get any issues straightened out.
FAC – Has no patience for companies that make NO effort to
preserve what they should and/or keep WAY too much information and then they
say the costs to produce and process that data will just be too much.
JC – Has less sympathy for companies that have arbitrary
deletion policies of 2 weeks. Why do you have that policy? Does it make sense? And if there’s no good
reasoning behind that policy she’s not happy about it. Where is the
justification for the policies? Why are you not saving e-mails for at least 1-2
months instead of 2 weeks?
Communication between
IT & management IS KEY.
FAC – The IT staff and management should know one
another. He can’t believe after 15 years
or so this disconnect is getting worse not better. Where is the cooperation between IT and
management? The management needs to know
what their firms/company’s retention terms and policies are BEFORE a litigious
situation.
FAC – He wants/needs “proof” from an expert that a
cost/request is too “burdensome.” He
wants something tangible to back up that statement.
Daubert Challenges
JC – IT folks are VERY up front and honest. When IT can get together and discuss what
will be delivered and how parties can avoid the “dueling experts” in
court.
FAC – It’s important to “head it off at the pass.” Agree to the terms, process, experts early
on.
Communication between
Counsel
JC – Important for counsel to communicate with one another
and target the necessary
information. How many employees’ e-mail
do you REALLY need? Identify what
employees are really relevant and involved in the case. Be realistic about how much information needs
to be collected.
Words for tomorrow?
JC – Privacy,
Indemnification; using third parties
FAC – Protective
orders; “Free Discovery” – the generational divide as younger people are not as
protective of privacy.
