Associate Justice Neil Gorsuch, United States Supreme Court at the Ninth Circuit Court of Appeals Conference in San Francisco

During last week's historic U.S. Supreme Court argument over subpoenas of President Donald Trump's financial records, U.S. Supreme Court Justice Neil Gorsuch made an e-discovery comment that caught some court watchers' attention.

On May 12, the justices heard arguments in Trump v. Mazars regarding three U.S. House of Representatives investigation committees' subpoenas for Trump's financial documents. Participating remotely via phone conference, Gorsuch asked House general counsel Douglas Letter if there's a limiting principle to avoid misusing subpoena power.

"And it can't be burdensome," Gorsuch said, according to the Supreme Court's transcript. "I heard [burden], was your third, but in an age where everything's online and can be handed over on a disk or a thumb drive, that—that—that much pretty much disappears too."

To be sure, while the case had nothing to do with e-discovery's burden, Gorsuch's statement highlighted how most judges still lack in-depth e-discovery understanding. For some, this also underscored the need for ongoing training and the elevation of lawyers with e-discovery experiences to the bench.

"I think it highlights a few misconceptions about electronic discovery that it's a simple touch of a button and that you can comply with all your discovery obligations," said Lloyd Freeman, an Archer partner and Drexel University Thomas R. Kline School of Law e-discovery professor.

He added the variety of electronic data potentially subject to e-discovery is only growing, and judges and counsel can't afford to not understand the evolving process. 

"That's why I say it's very important for all judges and practitioners to sign up for those CLEs and learn those rules and how they affect the practice of law. It can get quite expensive and time-consuming and too much of a burden for you to comply with."

Prior to their admission to the bar, law school students should be exposed to e-discovery training, Freeman argued. "I think that law schools should take heed to what the justice's comment underscores the need for law schools to add e-discovery."

To be sure, Freeman did note e-discovery is a "relatively new course for any law school to have." Indeed, e-discovery wasn't even in its infancy until the early 2000s, a decade after Gorsuch graduated from Harvard Law School in 1991.

Still, after practicing law as an associate and partner at Kellogg, Hansen, Todd, Figel & Frederick and being appointed to the Court of Appeals for the Tenth Circuit in 2006, Gorsuch and other federal court of appeals judges are rarely exposed to e-discovery.

District judges usually leave discovery issues to magistrate judges to handle, wrote Driven Inc. information governance and e-discovery consultant Philip Favro in an email.

"With relatively few opportunities to consider issues surrounding electronic discovery, it's understandable that many district judges and appellate judges—like Justice Gorsuch—are not acquainted with the law, rigors, or technology associated with electronic discovery," Favro said. "Nevertheless, most district judges and appellate judges still correctly decide the issues."

Like Freeman, Favro said judges can take part in educational programs to further their understanding of e-discovery.

However, DLA Piper special counsel and former Southern District of New York U.S. Magistrate Judge Andrew Peck wasn't sure such programs could completely close the knowledge gap.

He pointed to the varying support for discovery training in state courts compared to federal courts, and noted that even when training is available, it may not be applicable.

"There's also a big difference between sitting in a classroom and hearing about this when you don't have a particular issue in front of you and remembering what you heard a year or two years later when that issue may actually come before you," he said. Along with leading e-discovery seminars for judges, Peck also granted the first judicial approval for the use of technology assisted review in 2012′s Da Silva Moore v. Publicis Groupe.

Christine Payne, a partner at e-discovery firm Redgrave, noted judges who became leaders in e-discovery "were on the bench when e-discovery really arose as a major issue in the law. A lot of them themselves didn't actually perform e-discovery in private practice. So that's going to change eventually as more spots on the bench open up and people who practice now become judges themselves."