eDiscovery: What Are Judges Thinking?

This summer one current and one former United States District Court Judge took to the interview circuit on the topic of eDiscovery.  The most common theme was that lawyers have the obligation to understand both the law and technology.

In a video released by Bloomberg Law, Jason R. Baron of Drinker Biddle & Reath (who was featured in Decade of Discovery) interviewed Judge Shira A. Scheindlin at the 2015 Big Law Business Summit.  Judge Scheindlin, who serves on the United States District Court for the Southern District of New York, discussed how the rise of eDiscovery has changed litigation.  She also stressed the importance of technological knowledge as enshrined in Model Rule of Professional Conduct 1.1.  Acknowledging that lawyers cannot simultaneously serve as counsel and as technologists, Judge Scheindlin emphasized the importance of monitoring vendors and consultants with access to client and law firm data.  She also fielded questions on the 2015 revisions to the Federal Rules of Civil Procedure, which will go into effect on December 1.  

Perhaps Judge Scheindlin's most interesting comments centered around the disparity in knowledge and training on eDiscovery issues between the courts. She stressed that while federal trial court judges receive extensive training on these issues, federal appellate judges and many state court judges are lagging behind.  Business courts such as Delaware's Court of Chancery, however, have been a bright spot for litigation involving complex eDiscovery issues.  Watch the full video below or on YouTube.

Elsewhere this summer, in a July episode of Digital Detectives, retired Magistrate Judge John Facciola of the United States District Court for the District of Columbia shared his philosophies on all things eDiscovery, starting with education in law schools.  Specialized courses in eDiscovery are needed, he says, but law schools should also integrate eDiscovery principles into existing courses, like civil procedure. Intensive continuing education courses for practicing attorneys with little eDiscovery experience are also essential.  Lawyers and law firms will need to adapt, Magistrate Judge Facciola said, because businesses and other clients will continue to demand that counsel have a working knowledge of technology and use technology in their practice to maximize value.  Listen to the podcast below.

Interestingly, both Judge Scheindlin and Magistrate Judge Facciola were asked whether the cost of eDiscovery has had the effect of driving everyone but the rich from the courts, and each came down on opposite sides of the issue.  While Magistrate Judge Facciola lamented that litigants are choosing to settle cases based on cost rather than merit, Judge Scheindlin suggested that settlements are instead driven by vast amounts of information gleaned from intensive discovery processes.  Those processes, Judge Scheindlin argues, lay bare so many facts and details, that in many cases there are no disputed facts to take to trial, and it is in the parties' best interest to settle.

Judge Scheindlin and Magistrate Judge Facciola are representative of an ever-growing number of judicial officers keyed into the issues and challenges of eDiscovery, which attorneys and litigants alike should view as a positive trend in the American justice system.