Attendee Diane Kilcoyne, a litigation support coordinator at Lerch, Early & Brewer in Bethesda, Md.
Image: Monica Bay
The eighth annual Georgetown Law Advanced eDiscovery Institute opened Thursday morning with a fast-paced case law update presented by six of the most well-known jurists in the legal industry: John Facciola (U.S. District Court for the District of Columbia); Lee Rosenthal (U.S. District Court for the Southern District of Texas); Andrew Peck, Shira Scheindlin, and James Francis (all three from the U.S. District Court for the Southern District of New York), and David Waxse (U.S. District Court for the District of Kansas). Baltimore's Paul Grimm was scheduled to participate, but had a conflict and was unable to attend.
The almost-two hour session at the Ritz-Carlton in Arlington, Va., covered cases that illustrated a wide range of issues that were in consideration during 2011.
Francis started with the long-litigated Rambus cases. (Micron Tech, Inc. v. Rambus Inc., 645 F. 3d 1336 (Fed .Cir. 2011), and Hynix Semiconductor, Inc. v. Rambus Inc., 645 F. 3d 1336 (Fed. Cir. 2011), which addressed the issue of when the duty to preserve kicks in, and what is reasonable anticipation of litigation. Francis described the "shredding parties" that Rambus held that were revealed during the litigation. "In some respects, [Rambus] was an easy case," he observed, because it was so dramatic.
But Rosenthal suggested that it is easier to jump to that conclusion after the fact. "The mystery comes in when you are trying to figure out -- not using hindsight, in real time -- if it's reasonable," observed Rosenthal. Scheindlin stressed that "reasonableness" is critical. "Was the conduct reasonable?" she asked, noting this can be a tough question for defendants.
"Shred day is never going to go over well after the fact," said Peck. "I'm not sure there is any rule-based approach that will solve all the problems."
Rosenthal and Scheindlin next tackled the Rule 26(f) "meet and confer" issues that were raised in Genger v. TR Investors, LLC, No. 592, 2010), (Del. Sup, Ct. July 18, 2011), and dove into the meaning of "proportionality," as they discussed McNulty v. Reddy Ice Holdings, Inc., 2011 WL 116892 (E.D.Michigan, June 28, 2011). Among the takeaways, said Peck, is that "the court should not need to force cooperation."
Rosenthal cautioned that parties sometimes make assumptions about the judges that may not prove true, especially regarding the jurists' comfort level with technology. "Be sure you know how tech-savvy your judge is," she advised, and don't make assumptions based on his or her age. "You may be surprised at what they know."
Waxse focused on the what it means to be "competent" in the age of the computer, in the context of In re Taylor, 2011 WL 3692440 (3rd Cir. Aug. 24, 2011). Said Francis: "I don't see how you can provide competent representation if you don't have some basic understanding of e-discovery."
Attendees were enthusiastic about the panel."It's unusual to get this kind of group together," observed Alan Brill, senior managing director of Kroll. "When you do, you should expect it to be interesting, unpredictable, and engaging -- and this met that expectation."
Attorney Diane Kilcoyne, attending for the first time, was impressed by how "very open and very communicative about how practitioners need to respond when faced with potential litigation" the panelists were. Kilcoyne, litigation support coordinator at Lerch, Early & Brewer, in Bethesda, Md., said she particularly enjoyed the interaction between Rosenthal and Scheindlin, as they acknowledged the differences between Texas and New York decisions."The dispute between the jurisdications is of concern to practitioners -- we need to know where the line is drawn, when we are negligent for not issuing a hold at the slightest hint of litigation," said Kilcoyne.
"If there was some way to bottle the judicial acumen demonstrated by the judges panel, anybody with an interest in e-discovery would benefit greatly," chimed in DLA Piper partner Browning Marean.
Monica Bay is editor-in-chief of Law Technology News magazine and a member of the California bar. Send e-mail.
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