Ride the Lightning

FROM THE IVY COVERED WALLS: IS THE DISCOVERY PROCESS BROKEN?

November 14, 2008

This week, we had the opportunity to speak at the George Mason School of Law and George Washington University. Casting aside my abject horror at the fact that these students seem to get younger each year, they are a sharp lot.

It is very different lecturing to lawyers, who tend to be . . . well . . . technophobic as a class. The younger generation not only knew most of the technologies to which we referred, but taught the teachers a thing or two about how they use technology, which is as it should be.

Several things struck us about these lectures. First, the unrelenting curiosity – we were peppered with questions. At GW, where we were lecturing about electronic evidence generally, we came nowhere close to getting through our materials, even in two and a half hours – there didn’t seem to be a slide that didn’t engender half a dozen questions. Though some legal audiences are reasonably curious, these students set a new standard!

At GMU, where we were addressing the student body on the high cost of electronic discovery, it was clear that the panel and the students were in basic agreement that the cost of electronic discovery has spiraled out of control. It was apparent that Civil Procedure, as it is taught in law school, doesn’t cover the pragmatic aspects of electronic discovery. The five person panel, as one voice, concluded that the discovery system is so badly in need of repair that it is perilously close to being broken. At this point, settlements are far too often made in fear of daunting e-discovery costs – and too many worthy cases are not filed because of the same fear.

More on that next week in this blog – having finally read the Mancia case and Sedona’s recent publication on Collaboration, there is a great deal more to say.

John and I are off to build a high tech gate in W.V. to help protect the black bears of Spring Mountain from slaughter – in the splendid serenity of our mountaintop retreat, I shall entreat my muses to speak to me on the subject of e-discovery collaboration.

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