When the federal rules of civil procedure were updated for the digital age in 2006, federal judges had front-row seats at the revolution. They were among the first to see the sweeping changes that electronic discovery has brought to many areas of the law. At the same time, judges also saw how uninformed many attorneys and their clients were about technology and how resistant they were to a series of new rules.
Today, judges are playing an expanding role in defining this multimillion-dollar business. The five pioneers profiled here have not only set the stage in procedure and case law, but have become teachers, writers, activists, and ongoing cirtics of this rapidly changing industry.
Judge, U.S. District Court for the Southern District of New York
Scheindlin is constantly in the spotlight. She's ruled in many high-profile cases, including the three trials of mobster John Gotti Jr. and New York's "stop and frisk" anticrime campaign. Yet she is perhaps best known for her groundbreaking opinions in Zubulake v. UBS Warburg (I-V, with rulings issued between 2003 and 2005), which addressed legal holds on e-documents. "This issue was out there for any judge to grab because [e-dis­covery] is now part of any case," says Scheindlin. "I just became interested in it earlier than almost anybody else."
Scheindlin says that Zubulake has been a "guiding light for the country for both the federal and the state courts. . . . The New York state court adopted the Zubulake standard just a year ago, so that case has a long, long life."
Jackson Lewis partner and early e-dis­covery advocate Ralph Losey says that Scheindlin has had a dramatic impact on the industry: "Her writing has been very powerful and a key to how influential her opinions have been." Scheindlin's involvement in the ongoing e-discovery pilot project dealing with complex litigation in the Southern District is an example of her continuing work to shape and improve e-discovery processes. And she's been vocal on the issue of proportionality—the need to balance the total cost of electronic document discovery with the value of the case—from the start.
Lawyers "can't use old techniques and old arguments," Scheindlin says. "They can't base their costs on old ways of doing things and complain it's so difficult and costly. They have an ethical obligation to be up to speed."
Scheindlin is also a busy speaker on the emerging legal, philosophical, and technological issues of e-discovery. "I'm particularly interested in cross-border discovery," she says. "Privacy concerns are more pronounced in other countries than this one. And who possesses the data in the cloud?"
Judge, U.S. District Court for the Southern District of Texas
If Scheindlin was one of e-discovery's core strategists, Rosenthal was its architect. She was appointed to the Judicial Conference Advisory Committee on Federal Rules of Civil Procedure in 1996 and elevated to its chairmanship in 2003. Her leadership led to 2006 amendments that addressed—for the first time—how electronically stored information (ESI) should be handled in civil litigation. The amendments defined ESI as any kind of information that could be stored electronically. And they provided guidelines for attorneys, judges, and litigants about how electronic information should be identified, requested, and produced, as well as how to deal with cost and accessibility issues.
When the Federal Rules of Civil Procedure were first established in 1938, they were based on paper documents. Starting in 2003, Rosenthal and dozens of judges, attorneys, and other legal experts contributing to the rules process found themselves discussing and designing procedural rules for electronic evidence—a technological environment that was evolving month-to-month. Even in 2006, their work hadn't yet encountered the explosion of smartphones and handhelds that would exponentially multiply the amount of ESI in circulation. "The landscape was shifting as we were talking. The technology was changing. The speed at which [ESI] was replacing conventional information was remarkable," Rosenthal recalls. "It was much faster than we had been used to seeing in terms of the effects of changes in the economy or in business practice affecting litigation. This happened very fast. And it spread broadly and quickly."
The goal, in short, was to devise a set of rules that could evolve with the times. "We had three [tasks]," she says. "The first was to educate ourselves very quickly—not to be technological experts, because that would be impossible. We had to understand how the technology would make a difference in discovery. The second was to figure out how many of [the problems of handling ESI at the time] could be addressed by changing the rules. And the third involved timing—the difficulty in knowing whether we were moving too quickly, and how we could make a rule change that wouldn't be creating more problems than it would solve."
Fellow judicial pioneer Paul Grimm describes Rosenthal as "a phenomenon" for her work in crafting the first set of e-discovery rules. In 2007 Rosenthal was honored by the Library of Congress and the Law Library of Congress for her efforts.
Despite the accolades, Rosenthal would be satisfied if future generations forget her role in heading the rules committee. "I'm not sure if any of us will be remembered," she says. "Like many aspects of working on procedural rules, if it is well done, we'll forget it was ever any different."
U.S. Magistrate Judge, Southern District of New York
Peck is at the vanguard of the newest front in e-discovery—predictive coding. This new technology uses computer algorithms and human brainpower to screen documents. It promises to find relevant legal documents faster and cheaper than people alone can do. Peck has put his support behind this new technology with his trademark out­spokenness.
Peck threw down the gauntlet in his February 2012 decision in Da Silva Moore v. Publicis Groupe & MSL Group and 2009's William A. Gross Construction Associates v. Manufacturers Mutual Insurance Co. In the latter case, he issued his famous "wake-up call" in response to a discovery process that was bogged down by disagreement over search terms: "This opinion should serve as a wake-up call to the bar in this district about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or 'keywords' to be used to produce emails or other electronically stored information."
In Da Silva, he expounded on that statement: "This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant [electronically stored information] in appropriate cases."
Peck believes that predictive coding and the future iterations of this technology are an inevitable resource for cost-conscious lawyers, clients, and judges who want to keep cases moving in their courtrooms. It's time for the slow-to-adapt legal infrastructure to sign on, he says: "Producing parties want to do five keywords, and receiving parties want to do 500. It's like the legal version of Go Fish."
Austin-based lawyer and computer forensic examiner Craig Ball calls Peck "an able advocate of embracing new technology to bring down the cost and boost the quality of large-scale document review."
Judge, U.S. District Court for the District of Maryland
Grimm explains the concept of proportionality this way: "A $100,000 case shouldn't cost a half a million." That philosophy has made him the leading judicial advocate for transparency and cost control in e-discovery.
A former U.S. Army officer, judge advocate general, and federal magistrate from 1997 to 2012 until elevated to his current post, Grimm has watched the cost and workload of e-discovery rise with the use of the Internet. Until technology fully catches up to the problem, Grimm thinks radical human solutions are required. "We can't have a procedurally advanced system that no one can afford to use," he says. Lawyers, Grimm adds, need to find a way to collaborate on search even though their clients oppose each other: "Effective advocacy means lawyers have to come up with a discovery plan that makes sense."
The need to work together was Grimm's message in 2008's Mancia v. Mayflower Textile Services Co. That ruling contained a detailed examination of rule 26(g) of the Federal Rules of Civil Procedure, which covers e-discovery duty to disclose requirements, and other law calling for cooperation among parties in discovery. It mirrored the views of the Sedona Conference Cooperation Proclamation, a proposal for judicial reform by a legal industry think tank.
Jason R. Baron, director of litigation for the National Archives, credits Grimm's Mancia opinion for its "laudable emphasis on having parties speak in clear language and cooperate to the maximum extent possible, in line with [the Sedona Proclamation]." Patrick Oot, special counsel for e-discovery at the Securities and Exchange Commission and general counsel of the E-Dis­covery Institute, adds that Grimm's focus on rule 26(g) (certification requirements applied to initial disclosures) was "very well-rounded" and has made Grimm critically important to the latest update of the Federal Rules of Civil Procedure. "He's taken the baton from Judge [Lee] Rosenthal," Baron says.
Grimm says that keeping up with e-dis­covery is only going to get tougher with the expansion of Internet communication. "Five years ago, Facebook was nothing more than Mark Zuckerberg's online yearbook. Now, social media is pervasive and a growing problem for a lawyer. It wasn't integrated into mainstream disputes in commerce, and now it is. And while you could track information on servers before, now it's in the cloud. Every procedural challenge today is like the tip of an iceberg."
U.S. Magistrate Judge, U.S. District Court for the District of Columbia
Everybody who knows Facciola seems to want to buy him a beer—except, perhaps, for the remaining judges, lawyers, and law school deans who haven't yet heeded his nearly two-decade-old call to start learning about their clients' technology and take responsibility for it.
Facciola has suggested that lawyers who don't understand technology may be committing malpractice. "Uniquely in the history of the American bar, lawyers are being held to a level of competence that requires their awareness and understanding of the technology that's used in every case," Facciola says. "That's very dramatic."
His key e-discovery opinions include: Citizens for Responsibility & Ethics in Washington v. Executive Office of the President (which forced preservation of digital media in government); United States v. O'Keefe (which set guidelines for keyword challenges); and Equity Analytics v. Lundin (which set guidelines for challenges or defenses of search methodology).
"Magistrate judges are really the shock troops of e-discovery" because they're the first line in dealing with discovery disputes on the federal bench, says Browning Marean III, senior counsel in DLA Piper's San Diego office and cochair of the firm's electronic discovery readiness and response group. Facciola, Marean says, does his job with "humor, humility, and honesty."
Facciola is a busy teacher in the expanding number of e-discovery CLE programs, but he believes that the curriculum needs to become standard coursework for law students. He says that instruction in civil procedure and evidence should be changed to fit the evolving digital environment.
In court, Facciola sees plenty of attorneys who "may not realize they might be in over their heads. . . . It is important to stop, back up a bit, and learn a little more than what you know before you start to make troubling representations. It's either a problem of overpromising or underpromising. Those who overpromise say, 'Judge, don't you worry your pretty little head, we'll get this done in 30 days.' Of course they can't. Statements like that make the judge's hearing more acute."
Oot praises Facciola's dedication to education and instruction, "much of it on his own time." He notes that Facciola's venue in Washington, D.C., puts him in close touch with e-discovery issues at federal agencies and gives him a base of knowledge that relatively few e-discovery experts have.
This might be the reason that Facciola doesn't restrict his outlook strictly to e-discovery and its immediate impact on cases. "Information governance and project management—those skills are going to be extremely important going forward," he notes.
Lisa Holton is a freelance business journalist in Chicago. Email: Lisa@TheLisaCompany.com.