Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
Is Disclosure Part of the Answer to the Da Silva Moore Issues?
May 15, 2012
From the mailbag:
Ms. Nelson,
I read your post and felt compelled to respond. First, I should note that I think you’ve shown courage in even addressing these touchy issues openly.
Some thoughts:
I spent many years investigating and in some cases prosecuting people for doing improper things, often in “white collar” settings. I have seen what innuendo can do in the professional realm. Therefore, I really have to take issue with “juicy” anonymous tidbits when it comes to reputations. Experience dictates that a good policy to enforce is "either stand and announce yourself, and your claims, or say nothing" (I have resisted using the “get off the pot” admonition). It is one thing to claim that judicial decisions are subject to objection related to claims of well-intentioned bias; it is quite another to allege things untoward. While I do appreciate the sometimes tough positions zealous advocates of clients must take in litigation, such as in Da Silva Moore, whispering campaigns of this nature should not be part of the debate in the public square.
In response to the underwriting point addressed by the writer you quoted in the post:
“Let’s look downstream from a successful recusal motion, if it should come to that. Do we really want a world where the judges cannot speak at conferences? Or have to pay their own way to attend? Do people realize how much money most of them are giving up by sitting on the bench instead of remaining in private practice?”
Actually, there is a third way, one based upon the federal judiciary's disclosure system which addresses seminars geared predominantly towards judges. It involves disclosure by both vendors and judges. I referenced the federal disclosure system in my blog here. The federal policy statement clearly lays out its goal of providing a middle road that accommodates the competing concerns of education and transparency. Although it would appear that the disclosure requirements don't apply to general ediscovery conferences, the disclosure system could serve as a good template for allowing robust involvement by judges in ediscovery education, while appropriately putting all parties on notice in cases where, for instance, a particular vendor's technology-assisted review approach was the subject of contention between litigants.
And, by the way, observers may be surprised that these competing concerns are not the exclusive province of 2012 or of the e-discovery industry. The disclosure system arose in part because of a dust-up over a decade ago that focused on industry conferences and environmental litigation.
With regard to the writer’s objection to judicial education, I believe that he or she missed the point. Having judges educated in technological and statistical principles is indisputably beneficial, indeed necessary, for the adoption of improved litigation processes. I believe though that the objection went to the judge’s findings as being akin to some form of judicial notice of facts and conclusions that were based exclusively upon his knowledge in the area. I believe that the objections are based, in part, upon the recognition that the technologies and associated processes are — right now — more novel, complex and open to legitimate critique then the court appears to appreciate, and much too novel, complex and open to legitimate critique, to even preliminarily approve, without formal expert input in an adversarial setting.
Thanks for opening the shades a bit.
Gerry
Gerard J. Britton,
Topiary Discovery LLC
2500 Plaza 5, 25th Floor
Jersey City, NJ 07311
www.topiarydiscovery.com
Thanks for writing Gerry – and writing for attribution!
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