The Georgetown Law Advanced E-Discovery Institute: ESI Discovery Problems, Judicial Solutions

15 November 2009

The Institute ended on Friday with a reconvening of the Federal Judges panel that opened the program the first day.  Much was discussed (generated by questions from the audience) so we’ll highlight only some of the major points:

1.   There was much discussion about privilege, how the volume of information produced by electronic discovery has made the process of reviewing that information, to ascertain whether any of it is privileged from disclosure, so expensive that the result of the lawsuit may be a function of who can afford it.   In fact Judge Facciola, who led the discussion, announced that he and Jonathan Redgrave (cochair of the Georgetown Law Advanced E-Discovery Institure and a partner with Nixon Peabody) have an article in the Federal Court Law Review which presents “The Facciola-Redgrave Framework”.  They submit that the majority of cases should reject the traditional document-by-document privilege log in favor of a new approach that is premised on counsel’s cooperation supervised by early, careful, and rigorous judicial involvement.  That cooperation, having first led to an agreement as to what categories of information will be eliminated from any privilege review because the information is so clearly not privileged or so clearly privileged, will then focus on categorization of the information that must be reviewed.

The article was published over the weekend in the Federal Court Law Review and can be accessed here.

2.   Lawyers can no longer plead ignorance about e-discovery technology.  Yes, it has become nuanced and sophisticated and in many cases is not inexpensive.  As was repeated throughout the conference whenever “proportionality” had a chance to raise its head, the merits of a case can easily be overshadowed by discovery costs and complexity.   But there are very smart software vendors out there, and independent EDD consulting companies, who can get attorneys through the myriad formats and technology  to identify, preserve, collect, review, etc. the discoverable ESI.   And there are a flood of CLEs. 

3.  Which brought up another major point: the growing clamor for “certification” in e-discovery.  Said the collective judges (ok, there was one dissent): “not necessary”.  As the judges said, why add another administrative layer on an already cumbersome process?  There are CLEs, conferences, seminars, webcasts, etc. galore on computer forensics and electronic discovery for lawyers (and contract attorneys were mentioned), paralegals, support professionals, etc. to learn.  And these venues are proliferating and the process, the performance is getting better.  More and more people “get it”.  And thanks must go to Georgetown Law and The Sedona Conference and other venues … and the audience … for getting the word out.

And vendors are doing all they can to sponsor live seminars, webinars and webcasts to not only present their services but also to provide as much e-discovery education as they can. 

Besides, said one judge, “we have Rule 11 to enforce competency”.  

The more practicable move is to get e-discovery into the l aw schools through such efforts as the Georgetown E-Discovery Academy as well as what John Tredennick at Catalyst is doing at the University of Virginia, Ralph Losey and Bill Hamilton at the University of Florida, and the program at the University of Richmond (for our earlier post on this topic click here).

4.  The panel rounded out the session with a few comments on US v. Skilling (5th Cir. 1/6/09).   In the prosecution of Jeffrey Skilling, former CEO of Enron, the government sufficiently complied with its Brady and Giglio obligations by providing the exculpatory material, along with hundreds of millions of pages of other documents, and left it to the defense to figure out what it wanted, the 5th Circuit held. The 5th reasoned that the government did not simply dump the material, but rather provided a searchable electronic file, a set of documents it thought important, indices, and access to databases of related litigation. Additionally, the government was in no better position than the defense to find relevant material, and there was no evidence the government tried to hide the exculpatory material in bad faith.  However the U.S. Supreme Court has agreed to hear the case (click here).

The roundtable was a nice way to end the conference.