From the President

Our goal is to provide you with relevant material in The Discovery Update that you can use in your practice or that you can share with others.

The “What You Might Have Missed” section includes informative articles from past issues that you may have missed previously or that you would find helpful again.

We invite you to send us any articles or tips you may have regarding the discovery process so we can share them with our readers.

Best regards,
Sheila Atkinson-Baker

Is There a Right to Fail in E-Discovery?

By Craig Ball

Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the “v.”  Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties.  That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.

Cooperation in e-discovery is derided as naive in an adversarial system of justice, and “discovery about discovery” is vilified as a diversionary tactic, a modern take on the maxim, “If you can’t try the case, then try your opponent.” Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right.  Perfection is not the standard.  But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery?  Must we wait until the autopsy to question the care plan?

These questions bring the clash of attitudes between plaintiffs’ and defense counsel into sharp relief.

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Judges Believe Social Media will Have Biggest Effect on eDiscovery Over the Next Two Years

By John Patzakis

The good folks at Exterro recently released a very interesting report titled “Federal Judges Survey, eDiscovery Best Practices and Trends.”  The title includes a link to download the report, which I highly recommend reading as it is good to know what the judges who rule on eDiscovery all the time are thinking.  Overall, the report calls for some necessary disruptive change in the practice of eDiscovery in order to demonstrate competency.  There are some excellent tips in the report on how eDiscovery professionals can improve and what kinds of trends we should be on the lookout for.

One finding stood out to me in particular:  The Judges surveyed felt that social media would be the technology trend with the biggest effect on eDiscovery over the next two years.

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