Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
ABA TECHSHOW AND E-DISCOVERY
April 14, 2011
We have just bidden a fond farewell to ABA TECHSHOW – the time flies during this conference and we are always on information overload afterwards.
One question we were asked to bring to our colleagues on the faculty involved the extent to which attorneys understand litigation holds and their requisite duties. We asked that question of Browning Marean who shared a story about a recent presentation he had given to 150 litigators. He gave them a hypothesis – they had just received a letter stating an intent to sue their client. He asked how many would immediately issue a litigation hold – only two hands went up. We conclude from that, and our own experience, that litigation holds (and when they are triggered) are very poorly understood – five years after the new federal rules went into effect.
Another question involved the meet and confer required under the rules. Wisely, our friend and colleague Craig Ball said the meet and confer should not be understood simply as a meeting, but as a process. Necessarily, there will be continuing discussions as the facts in a case evolve. Mind you, in the states, it is often true that meet and confers are more informal and may consist of a compilation of phone calls and e-mails. But if you're in state court, make sure you know the rules for your state – many states have adopted a mutant version of the federal rules.
The understanding of "form of production" is no better. David Chaumette and Judge David Waxse shared a story about two parties who shared with the judge that they had agreed on the form of production – they were going to produce on a CD. When asked WHAT they proposed to put on the CD, they replied that they hadn't figured that out yet. 🙂
In another case, when Judge Waxse asked the parties why they were producing ESI in paper since it would be so difficult to review. But . . . ah . . . they had the ready answer. They were going to scan and OCR the paper so it would be searchable. Oh my.
Conclusion: There is a lot more e-discovery education that needs to be done! Reserve the date for next year's ABA TECHSHOW, March 29-31 at the Hilton in Chicago.
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