e-Discovery Grows Up

Last summer the Williamsburg, Va.-based National Center for State Courts (NCSC)--an organization that disseminates information to state court leaders on key national policy issues--dedicated its newsletter to one of the hottest and most contentious issues facing the legal community today: e-discovery.

Although the newsletter was intended for the state courts, litigators and corporate counsel may want to take note of its opening salvo, supplied by an anonymous judge.

Mark Coulson, a principal in the Baltimore, Maryland office of Miles & Stockbridge, takes the argument several steps further. The courts, Coulson says, are actually ahead of most attorneys in terms of understanding e-discovery and the technical issues that surround it. "The courts are years ahead of the lawyers," Coulson says. "Just look at the recent opinions that have come out --they include very detailed discussions of the technical issues."

As an example, Coulson points to two recent cases in which the courts requested specific, technical e-discovery information: Thompson v. U.S. Dept. of Housing and Urban Development, and Aero Products Int'l., Inc. v. Intex Corp.

"Judges do need to be better educated on this issue, no question," says Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas, and a member of the committee proposing amendments to the U.S. federal court system rules for civil procedure. "An e-discovery dispute is no different than a patent, copyright, antitrust, or intellectual property dispute--you have to be familiar with the subject area."

Towards that end, numerous efforts are underway to help federal and state judges and attorneys better understand and manage the ever-changing docket of

"E-discovery is more of a technology issue than a legal issue. For judges, continuing education on DNA, or insurance, or accounting may be more relevant," Best explains. "In discovery matters that are time consuming, or require special expertise or attention, judges often refer matters to special masters or discovery referees who either take the place of judges, or provide (them with) reports and recommendations."

Another issue that's difficult to track is the number of e-discovery disputes actually reaching U.S. courtrooms. While prominent federal cases continue to garner headlines, smaller state-level disputes rarely generate written opinions.

Such early disclosure provisions are key because they help the judge better manage e-discovery matters and litigants reduce legal risks, such as spoliation.

"The courts definitely appear to be pushing attorneys toward early disclosure and having a plan in place for data preservation," says Eric Schwarz, national practice leader for legal technology at Ernst & Young. "It's to the attorney's benefit to get out in front early and preserve that electronic evidence, because it can help out later on. If, for example, there are allegations of spoliation, you can say, 'Here's what we said we'd provide and here are the steps we took.'"


Scott Gawlicki is a freelance writer based in Connecticut. He can be reached at s.gawlicki@excite.com.

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