ediscovery lock on computer screenNext week, a conference that’s become an annual standout occurs again: The e-discovery conference at the Sandra Day O’Connor College of Law at ASU.

Scheduled for March 12 to 14, the third annual “ASU-Arkfeld eDiscovery and Digital Evidence Conference” features some talented panels of lawyers and judges. Those judges include some of the leading jurists who have rendered major e-discovery opinions: Judges Shira A. Scheindlin, John Facciola and Craig Shaffer.

Judge John Facciola at the 2013 ASU conference. eDiscovery 1

Judge John Facciola at the 2013 ASU conference.

I wrote here about Judge Facciola’s previous appearance at the E-Discovery conference.

More information and registration are here.

Judge Shira Scheindlin

Judge Shira Scheindlin

If any lawyer or law student is headed to the conference (just part of it or the entire two days), and if you would like to write a blog post, please feel free to contact me. I’d be pleased to run it following the ASU event. (Photos are welcome too!)

ASU EDiscovery conference image 2013At the end of this week, a conference on eDiscovery issues will provide insights and national speakers.

I wrote about last year’s conference, here and here. I’d expect more great content this week.

As the ASU Law School describes it:

ediscovery Judge John Facciola

Judge John Facciola

“The Second Annual ASU–Arkfeld eDiscovery and Digital Evidence Conference will focus on the practical and cutting-edge issues affecting the discovery and admission of electronic information. The annual conference is hosted by the Center for Law, Science & Innovation, in collaboration with Michael Arkfeld, Director of the ASU–Arkfeld eDiscovery Program.”

You may register here.

It’s looking like I will be unable to attend any of the events at this year’s conference. But I’d enjoy hearing from someone who does attend. If you’d like to write a follow-up post, long-ish or short-ish, just let me know. It could be an overview of the entire conference, or a briefer post on a single panel or on the keynote address, delivered by Judge John Facciola. And photos are always welcome.

Write to me at arizona.attorney@azbar.org.

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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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.