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Judicial Roundtable from Georgetown Law Advanced E-Discovery Institute


by Ron Friedmann on November 19th, 2010 at 5:47 pm :

Integreon is a sponsor of the Georgetown Law Advanced E-Discovery Institute, widely recognized as the leading educational conference for electronic data discovery (EDD). This is a live blog post of the session Judicial Roundtable. The panelists are Hon. John M. Facciola, Hon. Francis M. Allegra, Hon. James C. Francis, Hon. Paul W. Grimm, Hon. Elizabeth D. LaPorte, Hon. Nan R. Nolan, Hon. Andrew J. Peck, Hon. James M. Rosenbaum (Ret.), and Hon. Joseph R. Slights, III.

[Note: this session had a wide-ranging discussion covering many issues. This post reports only a subset of the discussion.]

Q: Has the duty of a lawyer to manage client changed with respect to e-discovery?


The ethical duties have not changed; the rules have not changed. It’s become harder to comply because of the complexity of e-discovery.

Q: How should a lawyer help a court come up to speed on e-discovery issues?

One judge suggests that courts take into account the resources available to a lawyer and that expectations for lawyers in small firms may be lower than for lawyers in large firms.

Q: Should there be another bar exam or certification to test lawyers’ technical / EDD competence?


One judge argues that there are many certifications for other specialized aspects of law practice. So it would be reasonable to have certification for technical competence. Another judge points out that there is no distinction between discovery and e-discovery, so another judge disagrees because that would mean every lawyer would need the certification. Another judge suggests this should be a function of continuing legal education (CLE). An audience member remarks that there are organizations offering EDD certification (referring to them as selling snake oil). Another judge worries that such a big focus on EDD would take away from the real goal of litigation, which is to resolve cases, so why focus on only one element.

Q: What are your views on new technologies, e.g., virtualization or cloud computing, that corporations are adopting. With virtualization, the “server” disappears after use. With cloud computing, hard to know where data is.

Technology will always outstrip ability of the courts to react quickly. Our judicial system is, by design, meant to move slowly. One judge suggests that some software is designed not to leave a trail (i.e., intermediate drafts). This can be benign or ‘nefarious’ - it depends on the context. Changes in technology do not change the obligation to preserve. As long as a system has good faith basis for routinely deleting data, it’s likely that will be a safe harbor, unless it can be shown that party was on notice that they should have preserved data. Can imagine preservation orders as applied to cloud providers will create difficult issues and may, over time, cause changes in data storage practices.

Another judge notes that, in the old days, people threw away paper copies and hand-scribbled notes. The implication is that there is nothing wrong, generally speaking, with deleting / destroying intermediate work product.

Q: Experience with non-party destroying ESI and what should a party do if it learns of this and can a party be sanctioned for this?

Information was in possession of a non-party. The non-party asked a party if it was ok to destroy the information, who approved it. That party was then sanctioned because of true culpability by party. But absent culpability, not so clear. This depends on local law. In some jurisdictions, parties have obligations to try to preserve 3rd-party data. Some states, only a few, have torts for spoliation - these can create a cause of action against a 3rd party.