CONVERSATIONS WITH: Alitia Faccone + Rakesh Madhava
Nextpoint’s “Conversations With” is a feature offering insights from two or more industry insiders in a “panel-style” discussion around a specific topic area. Expect a lively and thought-provoking repartee and check back regularly for installments. To read the whole series, here is Part 1, Part 2, Part 3, Part 4, and Part 6.
Installment #6 by Alitia Faccone
Rocky, in your last post you posed the question—where do we go from here? The answer (and it’s my personal favorite answer), we take “the road less traveled,” of course.
We continue to walk down that eDiscovery dirt road until a path is so well-worn that everyone decides it’s time to put in a highway—in this case, a digital highway. When jazz, and later rock and roll, first arrived on the music scene, it was different and everyone was afraid. Elvis was going to corrupt the youth of America with his sexy swagger and unholy music. We all know that didn’t happen. After all, it was just music. And eventually it became mainstream music and everyone listened. But people still call it jazz music and rock and roll music because it’s a different kind of music with its own unique value and rhythm.
I agree all eDiscovery is just discovery, small “d.” But eDiscovery has its own unique considerations and rhythm. It is not yet so mainstream, i.e., that everybody’s doing it, that we are ready to nullify and no longer acknowledge the differences by changing its name. And I disagree that “the case law is mature and there are very few surprises left to be hashed out.” As the technology continues to change and improve (a good thing!), so too will the issues surrounding utilizing that technology. As new media such as social media is developed, we will have to come up with new or modified interpretations of the rules and cases already in place to account for those developments.
We have only approached the tip of the iceberg in 2012 regarding case law dealing with social media issues. I am afraid that we haven’t even scratched the surface. A litany of other questions remains to be answered: Will the Federal Rules be subject to further amendment, either modifications already under consideration or new, unforeseen ones? What about the Stored Communications Act, will that be modified? If so, when, how and will the amended version already be technologically out of date when that happens? The Supreme Court in Quon v. Arch Wireless thought it better to wait before delving into the still uncharted waters of addressing “emerging technology” in the law. As you say in your first post in this series, “there is an attitude among many that eDiscovery is a frivolous field of study . . . that there remains a lack of awareness within firms of all sizes that an eDiscovery obligation exists.” That continues to be our charge.
In the meantime, we “one-percenters” must continue to demonstrate how we can provide the most cost-effective solutions with a constant eye toward sound strategy for our clients. We have to demonstrate that if we utilize technology intelligently, engaging in meet and confers and acting cooperatively and proportionally, we will be heralded as examples of reasonableness and defensiveness to the court and will likely be more victorious in litigation. As to your other points, although we are law firm and vendor, I agree. We are two points of a triangle with our clients at the apex. Each of us plays a vital role in the process. Collaboration has always been, and will always be, the best of approaches, especially when we are all playing for the same team. In the meantime, I will continue to make tracks in the dirt road, and Rocky I know your tracks will be right there beside mine. And until they put in that highway for everyone to use, I, like Sally Field in Norma Rae, will continue to carry with me a one-word sign—only mine says “eDiscovery.”