by Cary J. Calderone, Esq.
link to website), and in a new location at the Monterrey Plaza Hotel, so I had to check it out, even if, due to scheduling conflicts, it was only for the first day of the Retreat. Bottom line-I was happy I attended.
Did I learn a lot of new eDiscovery information? No. Was I wowed by new presentation formats or materials? No. However, I did get plenty of insights and takeaways from the attendees and presenters, who are representative of that small cross-section of lawyers and judges who, in addition to knowing the law, also really understand the related technology. Or, as we started to refer to ourselves, "the one-percenters."
It had been quite a few months since attending an eDiscovery show but since I do keep track of the caselaw, I was not expecting a lot of new information. 2011 and 2012 so far have been kind of a slow years for groundbreaking eDiscovery judicial opinions. Also, eDiscovery is no longer new, innovative, and cutting edge. It has matured so the changes are smaller, fewer, and further in between. Many law firms have developed their own specialized eDiscovery practices. The law, the technology, and the best practices, have evolved and advanced. That said, there was still valuable information to learn, even if it was more subtle, and reflected the new reality of modern eDiscovery and litigation practice.
For example, at the morning session, "Defining Work Product In An eDiscovery World" moderated by George Socha, the panel was unanimous that the lofty goal of "cooperation" was attainable, but only when both sides, and perhaps the judge, were experienced with eDiscovery. Experienced participants would understand it could be a "win-win" situation for both sides when they could set and deliver on realistic discovery goals. However, when the litigation was asymetrical, and one party had no data to produce, or, had little or no previous eDiscovery experience, that counsel would almost never be "reasonable" because they did not see it as being in their best interest, or, more specifically, in the best interest of their client. This is when a knowledgeable referee or magistrate would be invaluable and could limit over-broad and overreaching discovery demands.
But the panel also acknowledged that in many cases, the eDiscovery dispute, with all its risks and potential associated costs, was the primary focus of the litigation matter. Counsel would not be reasonable because eDiscovery cost was the dominant factor in forcing a settlement. For my non-lawyer readers, who also might be a bit naive, not all legal outcomes are based on the facts and the law and justice. Rightly or wrongly, sometimes being faced with potential huge eDiscovery costs is the strongest motivation to payout and settle a case.
On this point, it was also interesting to note that the panel described a little bit of a technology backlash. A few years ago, there was a push to utilize Early Case Assessment (ECA) tools. Now, the thinking has changed. In many instances, it made little sense to advise their clients, the litigants, to spend money on pro-active tools for ECA, when those tools could be used against them. Why make it easier for the opposition to mine your information for smoking guns? It was not stated that way directly, but there was certainly an aura of reflection and contemplation when it came to justifying and advising regarding whether to deploy these ECA tools. In my practice, I tend to remind clients that "knowing" what you have, and where you have it, is still the best ammunition to prepare to defend or prosecute a litigation matter.
This reminded me of the kind of disappointment encountered and expressed by one-percenter attorneys who have to vehemently argue for a fair eDiscovery ruling because the opposing counsel, and sometimes the judge, are woefully lacking in technology expertise and understanding. As lawyers and judges become more and more comfortable with technology and the DRED issues, these instances should diminish. Until then, I feel your pain. If, as attorneys, we are charged with knowing and understanding our clients information systems, we should not have the additional burden of training techno-neophytes on the other side in order to successfully argue our positions. Lawyers never mind a little extra work to educate a judge, but spending our time, and our client's dollars to educate opposing counsel, is just wrong.
Readers of this blog know that, because I attend many events, I can easily feel bored or, underwhelmed and I am willing to point out when a show or panel is not the best because there is nothing new or worthwhile to learn. While typically, it is due to antiquated presentation formats and not enough new or interesting material, there are other ways to be disappointed. There are other ways for a panel or show to miss. I was looking forward to listening to Amor Esteban and Wayne Matus on their "Mitigating And Managing Risks Associated With The Cloud" panel. The problem was that with 5 panelists, and a moderator who gave rather lengthy opening remarks, Amor and Wayne had to speed through their very important points. Either of them could have filled an hour with real-world examples of the issues and risks that exist with Cloud computing. Due to the format they practically had to speed-talk through their material. I think the audience missed an opportunity to really learn what data should or should not go into the Cloud, and the necessary precautions and procedures to follow to be as safe as possible.
Back to the show at large. Another noticeable evolution at this Retreat was the eDiscovery vendor pricing models. A year ago, I think SFL Data was the only company I noticed that advertised flat-fee pricing for e-discovery services and most of the others advertised a per/gigabyte pricing model. That is no longer the case. Flat fee is now the de facto standard.
The first keynote was delivered by District Judge, Nora B. Fischer. She described just what they are doing in Pennsylvania to help train the judges and staff to better understand and handle eDiscovery. For DRED readers, the most important takeaway is that you attorneys and litigants had better be learning more too.
In conclusion, will I attend this event next year? Definitely. I hope there are more interesting new legal decisions and rules for the discussions, or, perhaps the technology will be even better and more advanced. But, even if there are not a lot of big eDiscovery updates, it will be worth my time because this group of one-percenters will know, understand, and teach me what is really important.