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The articles and tools in this issue were specifically chosen with the hope that they provide information you can use. As always, we welcome suggestions, comments or articles you have written that you feel would benefit other legal professionals.
The E-Discovery Sanctions Cube
By William F. Hamilton, Holland & Knight, Tampa, FL
Over the past few years, federal and state courts have rendered an unprecedented number of e-discovery sanctions orders and decisions. The trend is towards more and increased sanctions for e-discovery failures. These sanctions cases need a unifying theme and explanation; they need a model for analysis. This article presents the E-Discovery Sanctions Cube as a first effort at such an analytic tool. What is at stake is more than a theoretical exercise. Without a coherent model, we seem to learn the lessons of each case, but lack a comprehensive overview to ward off future disasters. If we can grasp the underlying dynamics of e-discovery sanction cases, we may be better able to devise a strategy to avoid e-discovery train wrecks. Indeed, our preliminary use of the E-Discovery Sanctions Cube as a teaching tool in law school e-discovery classes suggests that early dialogue between counsel and judge in Rule 16(b) hearings is key to the avoidance of sanctions and upholding the integrity of our system of justice.
Before today’s digital deluge, the last major litigation transformation was the introduction of discovery itself in 1938. Before the 1938 amendments to the Federal Rules of Civil Procedure, “discovery” required special bills, writs, and pleadings. Much like arbitration today, pre-discovery litigation required each party to assemble its own evidence and then head to trial. For this reason, the celebrated core litigation skills were the oral advocacy talents of argument, cross examination, and jury persuasion. For example, we recall and retell the courtroom oratory skills of Clarence Darrow and William Jennings Bryan.
Discovery brought with it new and often decisive battles, contests and conflicts. For the next 60 years, the courts and litigation counsel addressed the challenges of paper discovery. Federal and state civil procedure rules were often tweaked and adjusted. There were discovery excesses, abuses, and “gamesmanship,” but the general consensus was that paper discovery, and discovery in general, “worked.” Trials were fairer; meritless and purely legal cases decided more expeditiously, and surprise and ambush minimized.