When E-Discovery Became a Thing: Judges Reflect on Court's ESI Evolution
Current and retired federal judges closed out Day 2 of Legalweek, recalling how they first knew e-discovery would become a important topic in legal and discussing how it has evolved over the past decade.
January 31, 2019 at 10:37 AM
5 minute read
The original version of this story was published on Legal Tech News
|
The second day of Legalweek 2019 closed out with a panel of current and retired federal judges discussing everything from the first time they became acquainted with e-discovery to what amendments to the 2015 Federal Rules of Civil Procedure are working.
Panelists included Andrew J. Peck, retired U.S. magistrate judge, who is currently senior counsel at DLA Piper; Chief Judge Joy Conti of the U.S. District Court for the Western District of Pennsylvania; Magistrate Judge Elizabeth Laporte of the Northern District of California; and Magistrate Judge Kimberly Priest Johnson of the Eastern District of Texas. Patrick Oot, partner at Shook, Hardy & Bacon, moderated the panel.
Here are the highlights from the talk:
|When E-discovery Took Center Stage
The judges on the panel weren't always e-discovery experts. In fact, some can recall a time when they thought e-discovery wouldn't be as big a deal as it is today.
For Peck, that time was shortly after the 2006 discovery amendments to the FRCP, which discussed electronically stored information.
"I think the first tipping point was the 2006 rules amendments," he said, noting that after he talked about the rules at a conference, some took him for an e-discovery expert. But Peck didn't think e-discovery would be a topic he would be talking about for long.
"I thought, 'OK, we are going to have all these nice new rules and therefore give everyone a year to figure it out, then I'll have to go find something else to talk about because everyone will have figured it out.' Obviously we're still talking about."
For Laporte, e-discovery came to light after a 2006 case she managed regarding alleged patent infringement of source code. "I had to write this length opinion dealing with serious sanctions that went through all the many thing that went completely wrong … the word ESI was only mentioned one."
She continued, "Then to my surprise a few weeks later, someone calls me up and says, 'You are just this expert on e-discovery, would you headline our conference.' … and I said, 'What are you talking about?' I didn't realize this would come a buzzword, if not a field."
|Things Change, Stay the Same
While e-discovery processes have become better known over the past decade, there is still the persistent problem of attorneys and judges not understanding new sources of ESI.
"In 2005 and even after the 2006 rule change, lawyers were still coming into the court—those of a certain age—and pointing to their grey hair and bald head and saying, 'I'm sorry judge I still don't understand how to deal with emails and ESI,'" Peck recalled.
Now, "I think we are seeing with text messages and some other forms of non-email communication" the same problem, he added. " But we all as lawyers and judges need to learn how to deal with the newer forms of technology, just as we had to learn back in 2005 and 2006 how to deal with email."
But adapting to new data sources may be easier now than it was over a decade ago. Judge Conti noted that "the big difference today than before is judges are more attune to" new technology and ESI. "Perhaps not every judge, but we have had a lot of judicial education over this."
Still, she noted that it is still difficult for all legal professionals to keep up with the evolution of technology. "It's incredible, the pace of change is so fast in this field it makes it interesting, but it's also very difficult for the partners to keep up, let alone the judges."
|The Amendments That Work
Peck and Johnson agreed that changes to FRCP rule 26 instilling proportionality in discovery request has, for the most part, caught on in the legal industry. "No one ever talked about [proportionality] when I was a lawyer; I never thought to make a proportionality argument," Johnson said.
"But I would say a positive thing … is that I don't see boilerplate objections anymore. I think parties realize, if we are going to make these objections [judges] want specifics, how much is this going to cost what is the burden."
Johnson also praised the changes to rule 16 that mandate a meet-and-confer conference, which she believes helped decrease the amount of discovery disputes in her court. "I believe in large part it's because of the specific requirements in conference."
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllIn Lame-Duck Session, US Senate Confirms Illinois Federal Judge on Bipartisan Vote
3 minute readRepublicans Grill Biden's NDNY Judicial Nominee Over Prior LGBTQ+ Bill Sponsorship
6 minute readGupta Wessler Represents Grieving Families in Baltimore Fatal Bridge Collapse
3 minute readTrending Stories
- 1Gibson Dunn Sued By Crypto Client After Lateral Hire Causes Conflict of Interest
- 2Trump's Solicitor General Expected to 'Flip' Prelogar's Positions at Supreme Court
- 3Pharmacy Lawyers See Promise in NY Regulator's Curbs on PBM Industry
- 4Outgoing USPTO Director Kathi Vidal: ‘We All Want the Country to Be in a Better Place’
- 5Supreme Court Will Review Constitutionality Of FCC's Universal Service Fund
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250