Changing the Conversation in eDiscovery Law: Part 2

Changing the Conversation in eDiscovery Law: Part 2

Changing the Conversation in eDiscovery Law: Part 2 150 150 nextpointguest

Nextpoint Conversations

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 reportée and check back regularly for installments. To read the whole series, here is Part 1Part 3Part 4Part 5, andPart 6.. 

Installment #2 by Alitia Faccone

Flat vs. Round

Rocky, I’m not sure if I would call the eDiscovery world a “funny” place (although it can certainly claim its share of interesting characters). Rather, it is an exciting place—and I consider myself quite fortunate enough to have had a front row seat there for the last several years of my career.
I do think it’s funny that this blog post will be published just after the 520th anniversary of Christopher Columbus landing in the present day Bahamas, which is generally believed to have refuted the theory that the earth is flat. Apparently, there still remain some “modern flat-earthers” including some schools of Islam in Mauritania and Sheik Bin Baz, a senior Muslim cleric of Saudi Arabia who pronounced the earth to be flat as recently as 1999. But ignoring those holdouts, the point is it took a LONG time for the general population to believe round was right and round was good.

Zubulake and the New World of eDiscovery

The first working “stored electronic computer,” the great-granddaddy to your Macbook Pro, dates back to the late 1940s. The Judicial Conference officially acknowledged eDiscovery only 6 years ago  when it passed certain amendments to the Federal Rules of Civil Procedure. And now it is six years later in 2012—a mere nanosecond in the annals of history. In September I published an article on the upcoming 10th anniversary of the seminal, ground-breaking, precedent-setting (pick your adjective) Zubulake v. UBS Warburg decisions [shameless self-promotional link to article here].
The gist of the article was that since 2003, technological advancements that the average legal Joe or Jane—even in the eDiscovery law space—hadn’t contemplated 10 years ago have amazed us, yet Laura Zubulake, and the opinions authored by Judge Shira Scheindlin in her gender discrimination case, still remain relevant and an essential part of our eDiscovery jurisprudence.

Keeping Pace and Promoting Movement

And therein lies the key. For those of us on the front lines, keeping pace with the ever-changing law and technology is a vocation and a passion. It has to be because everything—not in the law—but in technology changes at breakneck speed. Forget flat-earth, the world of eDiscovery (a term that can’t even begin to cover the legal and technical issues now in play) is becoming as vast and boundless as the infinite cloud space capable of holding the world’s electronic data. How can we expect the non-legal/IT lawyer and IT professionals to keep up?
As you point out, Florida is only just adopting formal rules to account for eDiscovery. Many states still don’t have eDiscovery rules on the books. Law firms are just beginning to warm to the idea that eDiscovery is indeed a separate practice and should be treated as such. I would no sooner handle a tax law issue than I would attempt to teach middle school mathematics. But I would, and so say, “you really should consider the cost-benefit analysis of utilizing advanced search technology in that case.”
And that’s where those of us you referred to as “one percenters” comes in. We must do what The Sedona Conference has adopted as its mission: “Moving the law forward in a reasoned and just way.” As lawyers, we must continue to promote the concepts of cooperation and proportionality so that we can demonstrate to our adversaries—the 45 percent who have never sent an eDiscovery request on behalf of a client—that the water is fine, jump on in. We must continue to talk, continue to write and continue to educate—and not just each other.  With the digital world of data and communication at our fingertips as both our evidence and opportunity, we no longer need to rely on the Nina, the Pinta and the Santa Maria to get us there.

The second in a series of posts about changing the eDiscovery dynamic

Alitia Faccone, is co-chair of McCarter & English’s eDiscovery committee, and is well versed in all facets of electronic document discovery, including the viability, use and defensibility of advanced technology solutions. Rakesh Madhava, Nextpoint CEO opened this discussion with his previous post.
See Installment #1.