Judge John Facciola

A recent eDiscovery conference promised insights into the nuts, bolts and more of that litigation tool. It offered that—and even more.

The “eDiscovery and Digital Evidence Conference” hosted by ASU Law School (which I wrote about before) gave attendees three days of that most technical of subjects. Congratulations to Professor Josh Abbott for putting together a talented group of people.

Those panelists included a keynote speaker who offered advice, know-how and quite a bit of wit.

The speaker was Hon. John M. Facciola, U.S. Magistrate Judge for the D.C. District.

Judge Facciola ranged broadly through the law, ultimately tying his topics back to the challenges of eDiscovery.

For example, he illustrated his talk by speaking of “the menace of the billable hour,” which has led to “a loss of true creativity in our profession.”

The billing unit’s relation to the topic was made clear when he added, “The emphasis on a buck leads to incompetent lawyers who charge not for the excellence of their work but for the time we take to do it.” In such a context, “Errors can be disguised.”

The judge explored some of the profession’s challenges, including the overpromising lawyer and our exaggerated notions of what is “burdensome.” Both have contributed to a general incompetence when it comes to electronic discovery.

The primary challenge, though, is one that not only undermines professionalism, but that also may lead to injustice. And that is asymmetrical litigation. While it is true, he said, that prepared lawyers always have the advantage over the unprepared, in eDiscovery the chasm remains wide.

Amending the rules to match new technology is important, Judge Facciola said. “But all rule changes are a fool’s errand if the lawyers don’t know what they are doing.”

And lawyer ignorance on the topic is tragic, he added, because “There has never been a time in history when it was cheaper to educate yourself.”

Professor Josh Abbott

As befits a keynote, though, the Judge ended by proclaiming his optimism. These electronic discovery cases have “a nice combination of the old and new.” And it’s “great,” he laughed, that younger, more technologically advanced associates are being advanced to be project managers. That serves the client, as well as professional development.

Given the judge’s candor, I was doubly pleased this week to read a blog post that chuckled at a recent order written by that same jurist. So as a treat for those who read all the way to the end, enjoy the Wall Street Journal Law Blog on “A New Sheriff in Town.”

And here are some more photos from the conference.

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