When Supreme Court Justice Antonin Scalia went on a publicity tour for his book on legal writing earlier this year, it was considered a rare peek into the mind of an influential jurist. Here was a Supreme Court justice telling lawyers how to persuade judges. But the fact is, while judges are often a circumspect and guarded lot, there are few topics they enjoy talking about more than the art of litigation. And few litigation topics have gotten the judiciary talking as much as e-discovery.
E-discovery is a thorny issue because the volume and complexity of electronic records is many times greater than that of paper records. Judges say that succeeding at e-discovery starts before litigation even rears its head. Cathy Ann Bencivengo, magistrate judge with the U.S. District Court for the Southern District of California, practiced 17 years in patent litigation before joining the bench. “If you have clients you represent on a regular basis, know how their IT works,” she says. “If you can’t know the details, at least know what you’re talking about before you talk to the judge.”
