Often, when I am part of a CLE seminar on e-discovery and discuss what a practitioner must do in seeking or producing e-discovery, an attorney will raise his (it’s always “his”) hand and ask tendentiously, “Where in the Federal Rules does it say that a party ‘must’ do …” whatever it is I am saying the party must do?
Sometimes I answer by asking, “Do you own a raincoat, umbrella or hat?” When my questioner confidently answers, “Of course,” I ask, “Why?” Now the questioner slows down, sensing that he is being led down the garden path. “To keep dry in the rain,” he says, to which I reply, “Point me to the written rule that says you need to use an umbrella or wear a coat and a hat.”
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