The Georgetown Law Advanced E-Discovery Institute: a review

19 November 2009

Reporting for The Posse List:  Gregory Bufithis, Scott Madsen and Alex Hania

Last week Georgetown Law CLE, in cooperation with the Sedona Conference, presented its 6th Annual Advanced E-Discovery Institute.  It was one of the best conferences we’ve attended on e-discovery and that is based on the content covered, the experts/luminaries in the e-discovery field that spoke at the panels, and the interaction between the audience and the panels plus the informal sessions.  Moreover, the Institute had an all-star U.S. judicial bench in attendance:  Magistrate Judge John Facciola, Magistrate Judge Paul Grimm, District Court Judge Nan Nolan, Magistrate Judge Andrew Peck, District Court Judge Lee Rosenthal, District Court Judge Shira Scheindlin and Magistrate Judge David Waxe, who participated on multiple panels, and even sat in on many of the sessions and provided input — both from the panels and the audience — and who made themselves available during the breaks and informal sessions.  It was a great “hands on learning” e-discovery experience.

The non-judicial roster of e-discovery experts was just as impressive and rather than list them all we have provided a link to the full list (click here).

The Keynote Address

Judge Lee Rosenthal gave the keynote titled Is the E-discovery Process Broken, and, If So, Can It be Fixed?

Judge Rosenthal was appointed a United States District Court Judge for the Southern District of Texas, Houston Division in 1992.   She was appointed chair of the Civil Rules Committee in 2003 and served during the “restyling” of the Civil Rules and the adoption of the electronic discovery amendments. In 2007, Chief Justice Roberts appointed Judge Rosenthal to chair the Judicial Conference Committee on the Rules of Practice and Procedure, which coordinates the work of the Advisory Committees for the Civil, Criminal, Evidence, Appellate, and Bankruptcy Rules.

She spent a good part of her speech on the results of a Federal Judicial Center report which surveyed federal cases that terminated at the end of 2008.  The big surprise:  the costs of civil litigation are not escalating out of control due to the mounting burden of e-discovery.  You can access the full report by clicking here.

According to the report, over 70% of the attorneys in cases involving e-discovery reported having no problems with discovery.  Disputes over e-discovery occurred in less than 2% of those cases (a fact repeated several times by the judges attending the conference) and almost all involved disputes about the form of production.

Other points Judge Rosenthal raised:

— cases that involve electronically stored information (ESI) were  more expensive than cases without ESI

— most cases settled with only about 1% coming to trial

— in settled cases, 60-70% of the attorneys said the cost of e-discovery had no bearing on the settlement

As Dennis Kiker of Fios, Inc. said in his blog post (click here) the general trend of the responses is in surprising contrast to the results of the joint report of the American College of Trial Lawyers Task Force on Discovery (ACLS)and the Institute for the Advancement of the American Legal System (IALAS) which reported that 71% of attorney surveyed believed that discovery was used as a tool to force settlements.  Dennis offers a  number of factors that might explain the discrepancy.

Some of the other points raised by Judge Rosenthal:

—  a litigation survey showed only 5% of the parties had used data sampling

— sixty percent of corporations did not have any litigation holds, which can be dangerous

– – two important cases to read on e-discovery are Twomley (the adequacy of pleadings) and Iqbal (the “facial plausibility” pleading sufficiency test applies to all federal civil actions)

— there has been a lack of success of District Court Judges to control discovery (TPL thought: the magistrates intimidate them)

— proportionality is in the national debate and an adequate set of controls need to be applied to achieve proportionality.  This was the mantra repeated throughout the 2-days of the conference

— The Sedona Conference Proclamation of Co-operation is a good starting point for collaborative e-discovery

— Effective e-discovery should include a reasonable cost component.  The ACLS and IALAS report (cited above with link) discusses 29 principles to promote effective e-discovery including early identification of issues and better control to contain costs, fact based pleading, narrow requests for production, more early discussion and more judge involvement

—  Rule 16 helps expedite discovery and contains items for courts to narrow litigation including active judicial management.  Rule 16 and 26(f) are notably underused.

Potential fixes for the system:  there are several pilot programs currently being conducted, notably one in the 7th circuit with the goal of incentivizing early discussion and e-discovery being resolved as an example of Rule 26(f) information sharing and co-operation.

And the big take-away from the Judge’s presentation:  the judges are in a good position to take a long look at e-discovery at the May 2010 Annual Meeting and Judicial Conference at Duke University where the FRCP Rules committee will revisit, among other things, judicial involvement and settlement issues.

The Sessons/Panels

There were 18 sessions/panels and we could not cover them all.  We tried to focus on those most relevant to our readership, as diverse as it is.  Click on the title to go to each summary:

The E-Discovery Case Law Update

Unified communications – the game changer in e-discovery

Advanced Search and Retrieval Technology

How E-Discovery “Fits” into Civil Litigations

E-Discovery in Federal Investigations

Cross-border E-Discovery & International Data

Concluding Judicial Roundtable on ESI Discovery Problems, Solutions

Future Georgetown Law CLE Programs

Through our new affiliation with Georgetown Law we will be proving details in the near future on Georgetown Law Center’s E-Discovery Training Academy program in March 2010.  The Academy is rather unique in that it offers a comprehensive practical training of attorneys, practice support professionals and technical specialists in the entire spectrum of legal strategies and technological services that constitute the full practice of e-discovery.  The Academy is the only program of its kind affiliated with a major law school and has gained national prominence following the success of its inaugural course of study in February, 2009.

We will also have information on Georgetown Law CLE’s 14^th Annual Corporate Counsel Institute (also to be held in March 2010) developed in cooperation with the Association of Corporate Counsel (ACC) which focuses on practical, relevant and comprehensive topics.  This program will be repeated in London in April as Corporate Counsel Institute – Europe.

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