If you looked to popular, good legal publications (online and in paper) to follow trends and issues regarding the intersection of digital technology and the law, you will see many articles and columns discussing high sophisticated matters. Cyberhacking; the implementation of the “Data Shield” agreement between the United States and the European Union under which the EU will allow data to be imported into the United States if the importer implements the privacy protections the EU enforces; sophisticated technical and legal issues regarding e-discovery—these are some of the typical writings the reader of these publications will see.
One appearance that these offerings can create is that the issues basic to subjects such as e-discovery have been so often analyzed by writers and so strongly internalized by lawyer-readers that the average lawyer or, at least, the average litigator, has an understanding of e-discovery that is as strong as his understanding of the legal areas in which they practice (contracts, property, regulatory compliance, litigation practice other than that of e-discovery, etc.) such that there is no longer the need to discuss the basics of e-discovery as writers did 10 or so years ago. That appearance, however, can be deceiving. In the recent matter of Mr. Mudbug v. Bloomin’ Brands, Civil Action No: 15-5265 Section: “H” (4) (E.D.LA Jan. 11), the court ruled on issues that one would have been considered so “basic” 10 years ago that articles on those issues hardly would have been written. That we see matters turn on such issues shows that while they may not be the sexiest to write about, they are essential to litigators nevertheless.
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