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June 14 — Several eDiscovery giants are leaving the federal bench, but there's hope that a new crop of attorneys and changes to civil procedure rules will help overcome the challenges ahead.
Magistrate Judge John M. Facciola, who retired in December 2014 from the U.S. District Court for the District of Columbia, was the first in what has become an exodus of “eDiscovery” judges. But despite those losses, Facciola believes that courts can find a way to grapple with technology-driven challenges.
Exponential growth in electronically-stored information, endless advancements in technology and rising costs of litigating in a data-driven arena are just some of the challenges facing courts.
Part of the solution lies in the newly amended Federal Rules of Civil Procedure, Facciola told Bloomberg BNA.
The effects of the changes to Rule 37(e), which governs when and how parties are sanctioned for the loss of ESI, are still undetermined, but Facciola, in a phone conversation with Bloomberg BNA June 13, offered some hope that the new Rule will significantly change the way parties preserve information.
“In terms of the decisions that have come down, it's hard to take a single opinion and see a trend,” Facciola said.
He did say, however, that the Rule is “simple” and relatively easy to apply. Facciola has noticed that opinions are getting shorter and more concise.
“There's no longer the necessity for a lengthy account of each circuit's understanding of how and when to sanction parties,” Facciola said.
“From what I've heard, lawyers are just in the throes of figuring out what effect the amendment will have,” he said, noting that it's up to attorneys to advise their clients against overprotection and overpreservation.
Corporate entities especially have to grapple with internal competing interests, which include the fear of being sanctioned for loss and the desire to preserve data to monetize it.
“One would hope that the decision to keep or dispose of data is a function of the company's overall information governance,” Facciola said.
Companies must consider the risks involved in keeping so much data, including vulnerability to hacking.
Facciola was even more upbeat about the effects of Rule 26(b), which provides proportionality factors that must be considered before granting a discovery request.
The new Rule is changing the way lawyers discuss these requests.
Facciola said the positive effects of the Rule will be seen in these conversations, and not so much in the opinions coming out of the courts.
Of course, more productive 26(f) conferences and meet-and-confers are likely to decrease the motion practice inside the courtroom, Facciola said.
Facciola said that both attorneys and vendors are responding to the challenges of soaring costs and increases in data.
“This industry is getting more efficient and prices are going down,” Facciola said. “I am impressed by the new technology that lawyers have on their desk for early data analysis, for example.”
Facciola said that technology is becoming more sophisticated and cheaper, and he expressed hope that options for smaller budget cases will grow.
Facciola is a faculty member of Georgetown Law's eDiscovery Training Academy, a program that provides an in-depth opportunity for attorneys to hone their eDiscovery skills. The discussions he witnessed June 5-10 at the Academy sparked hope in him, he said.
Several judges who have authored significant eDiscovery-related opinions have left or will leave the bar by the end of 2016, including retired District Judge Shira Scheindlin, of the U.S. District Court for the Southern District of New York and, more recently, former Magistrate Judge Paul Grewal of the U.S. District Court for the Northern District of California.
It's not just the bench that is seeing fresh faces, however. Today's millennial attorneys have a different—and likely, better—grasp on the technological challenges facing the justice system.
Facciola also teaches several courses at Georgetown Law, including a class titled Information Technology and Modern Litigation. His law students are able to pursue legal careers that rely on their new knowledge of analytics and project management. These fields of study aren't traditionally offered in law school, but Georgetown Law is challenging its students to consider them.
Current attorneys will need to keep pace, and educating oneself on the challenges of eDsicovery can't be “done on the cheap.”
As for the changing of the guard in terms of the exodus of eDiscovery judges, Facciola isn't worried one bit.
“I'm optimistic and hopeful about the future,” he said. “A bunch of us were so lucky to get into this arena when it was new and fresh.”
Facciola and his colleagues issued opinions without much precedent.
“We used our heads,” Facciola said. “We were involved with The Sedona Conference® and Georgetown and we went over these issues together.”
Sedona is a non-profit research institute dedicated to the study of law and policy, which published The Cooperation Proclamation to promote the goal of fair and cooperative discovery practices, as well as several commentaries on the use of electronically-stored information and data.
Facciola pointed to last year's Judicial Round Table panel at Georgetown's Advanced eDiscovery Institute as an example of his optimism. He ensured the panel consisted of both new and old judges (15 DDEE 507, 11/26/15).
“I'm not the type to engage in deep nostalgia and looking behind me,” Facciola said. “I have a lot of optimism about the future.”
To contact the reporter on this story: Tera Brostoff in Washington at firstname.lastname@example.org.
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