Computer Forensics and E-Discovery Blog : Computer Forensics & E-Discovery Specialist : Electronic Evidence Retrieval L.L.C. : Data Recovery, Hard Drive Retrieval, Deleted Files : New Orleans, Louisiana

Jason R. Baron wrote a guest blog,  DESI, Sedona and Barcelona, in Ralph Losey's blog e-Discovery Team.  In the blog, Jason Reports from the DESI III Global E-Discovery/E-Disclosure Workshop at ICAIL 2009 and The Sedona Conference® International Programme on Cross Border E-Discovery and Privacy.   He reports on many of the individual presentations and has some great links.

Jason reports  a familiar refrain, being prepared for the Rule 26 "meet and confer" and his interesting study on "asymmetric preparation" for the meeting.  He also discusses the use of testing e-discovery plans before launching full fledged e-discovery, a procedure similar to Judge Shira Scheindlin’s "Rolling Discovery" that I reported on previously.

Another trend among the presentations was the use of clustering techniques reduce the size of the ESI that has to be reviewed.

What encouraged me most about these conferences is the genuine sharing of researchers with practitioners-attorneys.  From my experience of 40 years in academe, I know that such collaborations between theoretical research and practitioner are not a given.

I'm interested in hearing from attorneys who have been through an e-discovery case.  What worked?  What didn't work?  What will you do differently next time?

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Shira A. Scheindlin is a United States District Court judge for the Southern District of New York and she presided over the pivotal e-discovery case Zubulake vs. UBS Warburg. Her rulings, known as Zubulake 1 through 5 set presidents for the practice of e-discovery.    Ralph Losey is an attorney and frequent blogger on e-discovery.  

Judge Scheindlin and Ralph recently participated in a podcast focusing on e-discovery education. Judge Scheindlin included several observations about the state of e-discovery; however, her comments on the state of, and future of, e-discovery are insightful. Speaking of the future of e-discovery, she said:

We used to say there’s e-discovery as if it was a subset of all discovery.  But now there’s no other discovery. [Emphasis added.]

As an e-discovery expert, I’ve had countless attorneys and even some judges argue that e-discovery is one of the worst ideas any litigator every heard of—that e-discovery is not needed. I’ve heard attorneys tell me that they have agreed with opposing counsel that a particular case does not “need” e-discovery. [More about that in another posting!]

Since 90 % of new communication is said to be done electronically, I’m certain that she is correct in judging the pervasiveness of e-discovery in future litigation. I’m sending copies of her remarks to a bunch of the attorneys I know who share the attitude that they can ignore e-discovery if they wish. 

I welcome questions and comments. 

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