Coming to a Law School Near You- eDiscovery Class 101

Professor Rick Marcus

Copyright © 2011 Cary J. Calderone

A few weeks ago, I had the pleasure of attending a Hastings College of the Law alum event where Diane Gibson, a prominent San Francisco litigator with Squire Sanders et al., and UC Hastings Professor Rick Marcus, presented, E-Discovery and Preservation.  There was some good DRED news.  For an alumnae event, this was very well attended.  There were over 100 people who showed up because they were interested in learning about E-Discovery.  The bad news was that when Professor Marcus, a principal drafter of the 2006 E-Discovery amendments to the Federal rules, polled the audience to find out who had heard of FRE 502 (critical for protecting privileged material from accidental disclosure) only myself and three others raised their hands.  Scary!  During the lecture and the Q&A afterword, we heard about many of the interesting E-Discovery and preservation issues, and what the Advisory Committee is considering for future amendments, but for me, the most important item was that Professor Marcus will, for the first time, be teaching Hasting's E-Discovery class in the spring of 2012.

I am looking forward to following up with Professor Marcus, to see how the class progresses from his initial course syllabus to the final exam.   Based on my personal interactions and experiences with general counsel and attorneys, I think an E-Discovery course should be required for all law students and members of the bar.  When he mentioned the new offering at the law school, and, especially considering the results of the FRE 502 poll, I thought "thank goodness."  Still, I can not help but wonder how challenging it will be for Professor Marcus.  The typical law case book does not change often and I am concerned that without a fairly deep discussion of the current technology employed, the E-Discovery law and techniques learned will be of short-term value.

It seems as though the Federal Rules of Civil Procedure get amended to keep up with technology, and before the ink is even dry on the amendments, technology innovation renders those rules, ambiguous at best.  Remember a few years ago, when all the concern and debate was about what constituted "inaccessible data?"  Technology has changed so now that discussion, if it were entertained, would be about easily accessed versus costly-to-access data.  Inaccessible has been all but dropped from consideration and the California E-Discovery Act, specifically allows a Judge to require a litigant to produce the information, even if it is considered inaccessible.  In all likelihood, practitioners and students are not going to bother discussing that subject.  They will be far more worried about what to do with all the data coming in from Twitter and Facebook.

Another great example of law versus technology came from an audience comment.  A retired attorney brought up the California rule that required Transit Authorities and certain government entities to keep all surveillance video tape, for 3 years.  This rule was, of course, enacted into law during the days when an entity had only one camera and recorded the video to actual video tape.  Today, an average bus has 10 to 12 digital hi-resolution cameras on board.  For a Transit Authority to keep all "tape" from all cameras on hundreds of buses for even a year it would cost millions of dollars and probably require a special data warehousing structure.   We can only wonder how long it will be before that law is updated?  And, then, how long before technology advances render that new law obsolete as well?

If I described teaching E-Discovery technology to law students as a Sisyphusian challenge, it would not be adequate.  To be appropriate the story would have to have the additional fact that every time Sisyphus rested, the boulder grew even bigger and heavier.  Technology moves to Moore's law-processing power goes up and the price comes down.  Technology innovation happens constantly and almost as quickly as the speed of thought.   Government codes and case-law move and evolve slowly at best, and compared to technological innovation, at a glacial pace.  Good luck Sisyphus and those poor attorneys and students who do not already understand quite a bit about technology.   Mega-kudos to Hastings and Professor Marcus for recognizing the need for formal E-Discovery training and for getting started!