Migrated from eDJGroupInc.com. Author: Conrad Jacoby. Published: 2014-05-25 20:00:00Format, images and links may no longer function correctly. 


Students drink from the fire hose

and try not to drown

On May 14, I had the privilege of serving as Program Chair and as lead instructor for the District of Columbia Bar’s annual “Essential Checklist for E-Discovery” CLE program.  This day-long introductory program, which has been an annual event at the Bar for over ten years, has helped introduce and train hundreds of lawyers and legal paraprofessionals about some of the basic tasks of e-discovery practice, such as deciphering “IT speak” and developing meaningful e-discovery request and responses. 

One of the pleasures of working in the D.C. area is the quality of e-discovery colleagues here; there aren’t many places in this country where you can not only assemble a cutting edge faculty from local talent, but also have them walk over from their offices to join the program.  It gives me great pleasure to thank Wendy Butler Curtis (Orrick), Elle Pyle (McDermott Will & Emery), and Rachel See (National Labor Relations Board) for joining me as faculty members and sharing their analysis and experiences with the audience.  And, of course, I owe the largest thanks to the real star of the program, United States Magistrate Judge John Facciola (D.D.C.) for his insight and never-ending excitement about this sometimes-odd, sometimes-esoteric part of legal practice.  The program would be a shadow of itself without his involvement.

Teaching a “big picture” course about e-discovery gives me some personal benefits, too.  Every year, the course forces me to revisit my prior assumptions about the e-discovery issues that will be most relevant to the audience.  The promotional course description for the Essential Checklist for E-Discovery program hasn’t changed much in at least the past four years, but the program itself changes, often significantly, from year to year.  New technology changes expectations about “reasonable burden” and “not reasonably accessible” ESI.  Rules change, too, and recent developments about the latest proposed amendments to the Federal Rules of Civil Procedure mean that this year’s sessions on the current federal Rules will require a significant overhaul before they can be presented again.  I’m indebted to Tom Allman and his voluminous writing (e.g., here) on the topic of e-discovery at the state court level; his work has made remarkably easy for me to highlight significant developments for my audience.  Finally, of course, more and more judges are applying these rules and expectations to the factual disputes before them, leading to an ever-richer body of reported case law.

Big picture themes ebb and flow as well.  Two years ago, navigating international e-discovery was one of the hottest topics, and I carved out time within the program to discuss some of those issues in depth.  This year, discovery of social media far eclipsed international e-discovery.  As e-discovery of social media remains a rapidly evolving area, I expect that to remain a hot issue for at least the coming year, too—but I’ll still have to double-check that assumption about a year from now, when I’m preparing the next iteration of the course.

A final theme for the program has been the increased ethical issues that come up in the context of e-discovery.  While many discovery sharp practices, such as the infamous “bad document privilege,” are typically addressed through application of governing court orders and underlying procedural rules, there are some signs that judges are no longer the only members of the legal community demanding that lawyers have basic familiarity with e-discovery concepts.  As I pointed out during the program’s presentation on e-discovery ethics, the California Bar has gone on the record with a formal opinion that basic understanding of certain baseline e-discovery tasks is fundamental to meeting the Bar’s definition of “attorney competence” under its ethical rules.  It will be very interesting to see the extent to which other state Bar associations follow suit.

–Conrad Jacoby


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