Technology and the Courts – CTC 2013 – Baltimore Day 2 – Judging E-Discovery Disputes

This is a paper that I prepared to provide some background for a presentation that I shared with Daniel Garrie at Courts Technology Conference 2013 in Baltimore on Wednesday 18 September 2013.

It has been the main focus of my attention during Day 2 of CTC 2013 although I have spent a fascinating morning checking out some of the software solutions demonstrated by vendors in the very large and impressive exhibitors hall. Most of the solutions deal with evidence recording and presentation, AVL systems and case management systems. What I would consider to be trial management solutions for judges seem to be absent which is something of a surprise. There was nothing on show about e-discovery although to be fair, that is of more interest to lawyers than court administrators and judges.

The paper considers aspects of E-Discovery from a judicial perspective. It argues that in the quest to resolve E-Discovery disputes between parties requires an informed and pro-active approach by judges. It suggests that the first objective should be to try and avoid a disputed E-Discovery hearing, utilising proper case management techniques based not only on the requirements of the law but an understanding of how modern technology may be applied to achieve rule-based goals. But overall, judicial involvement at whatever stage in the discovery process involves aspects of judging disputes.

The approach of this paper is largely a generic one and draws on the E-Discovery rules in England, the United States and New Zealand. When one examines these rules it is clear that some common themes become apparent. It is within the context of these themes that the discussion will take place, although from time to time examples from specific jurisdictions will be given. For example, England and New Zealand use a form of menu for counsel to assist them in approaching their discovery obligations. In England this takes the form of a questionnaire. In New Zealand the checklist is incorporated into the High Court Rules. Regardless of the name applied or where it may be located, the common theme is that of a menu approach that will serve as a foundation for an E-Discovery inquiry.

The discussion will first consider the nature of digital information and why it is that E-Discovery poses a paradigmatic difference from what could be termed “traditional” discovery. I then consider some of the ways in which “traditional” discovery is challenged by new information systems and adopts the suggestion that, from a judicial perspective, a holistic approach to the processes that lie behind E-Discovery must be adopted, starting with the obligation by organisations and businesses to have a proper Electronically Stored Information (ESI) policy and the need for a Court to be aware of that when it comes to considering issues such as information destruction. I then move to a consideration of document review and discuss the need for a new mindset on the part of lawyers and judges based on the need for consultation and co-operation between the parties and a recognition that E-Discovery must be based upon what is reasonable and proportional to the case.

I then consider the obligations of the parties within the context of this mindset and then move to an examination of the process, using the New Zealand discovery checklist as an example of the menu based approach to discovery process and obligations.

I then move to discuss the approaches to E-Discovery using technology and discuss the need for proper education in the use and abilities of technology in discovery both on the part of lawyers and the judiciary. I argue for active judicial involvement and discuss the rationale for this approach. Once again the themes of reasonableness and proportionality underpin judicial activity. I argue that judicial activity should not be restricted to the courtroom and in the context of deciding a particular case should be present throughout the entire process. Creative and effective use of E-Discovery case conferences is as important as the resolution of disputes in the courtroom. With proper case conferencing, any “in-court” discovery disputes should be of limited and focussed scope.

I then move to consider the E-Discovery process and give some examples of how judicial involvement may take place within the context of considering document retention policies, examining issues surrounding document custodians and issues surrounding keyword searching within the area of Early Case Assessment. Examples of the use of technology within these stages of the examination will be considered. I close the consideration of how judges get involved with a discussion of some of the matters that may form an agenda for a case management conference.

The preparation of this paper has been greatly aided by my co-presenter Daniel Garrie, a Senior Managing Partner at Law & Forensics, an e-Discovery, cyber security, and electronic forensic consulting firm with offices nationwide. Mr. Garrie is also General Counsel of Pulse Advisory, a venture Development firm.

Mr. Garrie has served as an Electronically Stored Information Liaison, Neutral or  Expert for the L.A. Superior Courts, 2nd Circuit, 3rd Circuit, 7th Circuit, New York Supreme Court, and Delaware Supreme Court. In 2009, the Daily Journal recognized Mr. Garrie as a “Rising Star,” and in 2011 featured Mr. Garrie as a Special Master and thought leader in E-Discovery. In addition, due to his outstanding reputation in the emerging industry of E-Discovery and computer forensics, Mr. Garrie was one of a handful of individuals appointed to the E-Discovery Special Master Pilot Program for the U.S. District Court of Western Pennsylvania  out of a national pool of candidates.

Mr. Garrie is on the editorial board of the Journal of Legal Technology and Risk Management, Journal of Law & Cyber Warfare, and Beijing Law Review.  He has published over 90 articles spanning many topics. His articles have been featured in the University of San Diego Law Review, ABA International Law Journal and Suffolk Law Review. Mr. Garrie also authored the text book E-discovery and Dispute Resolution published by Thomson Reuters in the Summer of 2013 2nd Edition and Software and the Law, fall of 2013.

Mr. Garrie is admitted to practice law in Washington, New York, and New Jersey.

I am also indebted to not inconsiderable assistance from Andrew King of E-Discovery Litigation Solutions, a litigation support firm, specialising in E-Discovery. Andrew very kindly read an earlier draft  of this paper and I am very grateful to him for his suggestions. I must also acknowledge the helpful suggestions made by Chris Dale of the E-Disclosure Information Project. Chris took time out from his very busy schedule to make some very helpful comments about the judicial stance to e-discovery, and I am grateful to him for sharing his expertise.

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