What is it about eDiscovery that packs the education halls?

I wonder this as I prepare to head out to yet another offering on the esoteric topic, this one at the Sandra Day O’Connor College of Law at ASU. It is a three-day affair, which starts today, and it features what appear to be terrific panels and a noteworthy keynote. More on all that in a minute.

First, though, I return to my question: Why am I—and many other lawyers—eager to hear about eDiscovery? After all these years of sessions and panels and speakers on the subject, don’t we have eDiscovery fatigue?

Part of the answer, I think, goes back to Marketing 101. Other areas of law manage to get along by labeling their elements with workaday words: Will. Contract. Crime.

But long ago, a few trial lawyers sat in a room and thought: What should we call that period of time in which we wrestle over documents and files? A generation later, associates worldwide deem it “drudgery” or “document hell.” But around that original table of esquires, a light bulb lit up: How about … “Discovery”!

A regular Ponce de Leon, those lawyers. So forever after, stacks of Bankers Boxes are not merely a felled forest made rectangle. They represent a journey, a quest—discovery.

Of course, the D word may enliven law practice, but it doesn’t put keisters in the seats at a CLE. For that, you need something else. And in regard to eDiscovery, it’s the old standby: fear.

Fear? Well, yes.

What I mean is, once you’ve been in law practice for a fair amount of time, you develop an expertise. You can spot issues, recall seminal law and trust your judgment and experience to make educated calculations. That is true among all lawyers, even trial lawyers when it comes to discovery.

But eDiscovery? That is a wiggly little creature. We think we’ve got it pinned down, but then a new development arises, as we can see in this scenario featuring an associate and a partner:

A: “Whew, I’ve gathered and indexed all of the files off the server. Done!”

P: “Did you remember to do the same with the emails?”

A: “Yep.”

P: “Including the deleted emails, and those residing on the secondary and tertiary servers?”

Less sure now.

A: “Um, yes.”

P: “And the applications that our client may have in the cloud. Did you index those?”

Panic in the eyes.

A: “I think so.”

P: “How about the thumb drives that our client handed out at four national conferences? And the transcripts and video from their 19 podcasts? The newsletters they distributed on Skype? The tweets that the summer interns may have foisted on the world? And don’t forget the company CEO’s holographic message to shareholders. You did capture all that data using the most recently accepted technological methods, haven’t you? Hey, why are you weeping?”

(No associates were harmed in the making of this scenario.)

Judge John Facciola

The ASU Law School’s Center for Law, Science & Innovation knows your pain. And that is why their keynote speaker is ideally chosen. And why that speaker knows precisely what to talk about: the risks of being uneducated on the topic of eDiscovery.

That’s right. Judge John M. Facciola understands that the keynote’s job is not to provide the nuts and bolts that other panelists will offer up. Instead, his keynote topic hits lawyers right where they are most cringeworthy: competency. And, of course, the risks inherent in not being fully competent in this rapidly changing area of law practice.

The speaker is a Magistrate Judge for the U.S. District Court for the District of Columbia, and his keynote title is “Competency in eDiscovery: An Ethical Dilemma and Cooperation Among Litigants.”

Here is the school’s description of Judge Facciola and his presentation:

The Honorable John M. Facciola, one of the foremost jurists and educators in eDiscovery and the author of several heralded opinions including Peskoff v. Faber, United States v. O’Keefe, and Equity Analytics, LLC v. Lundin, will start the program with a fascinating keynote address that explores the ethical implications involved in violating perhaps the most basic rule of professional responsibility—competency.

Judge Facciola’s address on competency will be discussed in relation to the:

  • Developing law of sanctions with a focus on the present state of the law prospects of rule changes
  • Judicial involvement and movement of government agencies toward transparency and cooperation
  • New developments in the criminal law re eDiscovery
  • New federal judicial regime of enforcing the obligation to meet and confer
  • Whether the adversarial model of discovery is giving way to a new cooperative process

    Josh Abbott

Time to refresh your competence. You may read more about the conference and register here.

More on the Center for Law, Science & Innovation is here.

And congratulations to Josh Abbott, Executive Director at the Center, for staging what looks to be a great event. I’ll report back later on the judge’s address to attendees.