Use It or Lose It in E-Discovery

LegalTech Judges Panel warns lawyers to get their "get out of jail free" card, aka 502(d) orders.

, Law Technology News

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Andrew J. Peck
Andrew J. Peck

Despite a wet, heavy snow storm in New York today, a standing room only crowd came to the Day 2 keynote, "The Judges Panel," at LegalTech New York to hear the thoughts of what moderator Craig Ball aptly described as some of the most influential leaders in electronic data discovery: U.S. District Judge Shira Scheindlin, magistrate judges John Facciola, James Francis and Andrew Peck. A fifth judge, Texas' Lee Rosenthal, was unable to attend due to the weather.

Ball, an Austin-based attorney and forensic technologist, kicked off the discussion by observing that despite the dominance of handheld devices and BYOD (bring your own devices), litigants act like handhelds don’t exist. 

Scheindlin responded by discussing the dangers of employees having confidential corporate information and trade secrets on personal devices and questioning whether that information is safe.

Francis challenged Ball’s suggestion that handhelds haven’t changed EDD, stating that “the problems of handhelds are the problems of e-discovery magnified,” such as ownership of data, mixed source issues, and identification and collection of data.

Turning their attention to the issue of technology competence of attorneys, Facciola declared that lawyers are not where they should be in their understanding of cybersecurity, citing as an example that lawyers continue to use open networks to communicate with clients or about clients. Francis said that he sees a higher level of technological competence among attorneys now than 10 years ago. But he cautioned that it needs improvement. An attorney’s lack of technology knowledge is a competitive disadvantage, he said, because e-discovery is pervasive and lawyers can’t conduct a litigation of any complexity without having the technology knowledge to conduct it.

Facciola predicted that we may soon see lawsuits being filed against law firms for failure to secure data and for disclosure of client data.

The hot topic of the morning was Rule 502(d). Peck remarked that a disappointingly small percentage of lawyers routinely use 502(d) orders, which he described a “get out of jail free card” in the event a privileged document or electronically stored information slips through.  Peck asked the overflow audience how many lawyers routinely request 502(d) orders, and only a few hands went up.

He recognized that this is due, in part, to a fear that a “Neanderthal judge” will deny the producing party the time to conduct a careful privilege review if a 502(d) order is in place. That fear is overstated, said Peck, adding that he was not aware of any reported case where that had been done.

While Scheindlin was more sympathetic to the producing party’s concerns, Peck was adamant--"It's akin to malpractice" if lawyers do not  seriously consider a 502(d) order. He urged parties to use the language in his 502 Order, which provides that “Nothing contained herein is intended to or shall serve to limit a party's right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness and/or segregation of privileged and/or protected information before production.” 

Reaction to the panel was overwhelmingly positive. Jeanne Eicks, professor and managing director of the Center for Legal Innovation at Vermont Law School, found it “wonderful to hear the judges’ strong endorsement of the ABA 2020 Commission, specifically the technological competency standard for lawyers” and the agreement among the judges about the importance of attorneys being technologically competent.

Zelda Owens, managing director of TrustPoint International, an e-discovery vendor, found it “interesting to see how the judges have a variety of opinions on what should be discussed and disclosed by the parties during the Rule 26(f) conference, especially regarding production format.”

Gail Gottehrer is a partner at Axinn, Veltrop & Harkrider and director of the Connnecticut chapter of Women in E-Discovery.

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