Report from the 2010 Georgetown Advanced E-Discovery Institute
Last week I attended the Georgetown Advanced E-Discovery Institute, where many of the leading jurist- and practitioner- e-discovery experts attend or present. My employer Integreon was a conference sponsor so I blogged five sessions over at the Integreon blog. Here are the links with brief synopses and some commentary.
E-Discovery Case Law Update. A panel of leading e-discovery jurists discussed the most pressing legal EDD issues: sanctions for EDD gone wrong; data preservation, especially from newer technologies such as the cloud; the meet and confer and lawyer cooperation (or the lack thereof); and whether Federal Rules of Evidence 502 offers enough protection for privilege. The jurists’ opinions vary – and that is arguably an understatement.
Hot Topics for Corporate Counsel. Inhouse counsel from Capital One, AOL, GE, Tyco, and WellPoint discussed hot EDD topics: the challenges of implementing litigation holds; whether corporations should have automated indexing tools to facilitate EDD and whether, even if they do, the have the human resources to use it effectively; and how to persuade corporate management to fund EDD efforts. I was most struck by a comment GE counsel made: in an automated review; why should lawyers measure accuracy if it turns out it will be low, which will only hurt their position in court. That does not bode well for more empirical analysis of alternate approaches to document review.
Early Evidence Assessment and Strategies for Search, Retrieval and Review. My favorite statement was that ECA is not something you buy, it’s something you do. I absolutely agree. Beyond that, there was a healthy debate on whether ECA is really about data analytics or a broader case evaluation. Part of that debate was around whether anything must be done with the data during the process. For the record, the term ECA had a meaning established prior to its use in EDD.
Technology Focus – Databases. Leading EDD expert and columnist Craig Ball co-presented with computer science Prof. Ophir Frieder of Georgetown. Both did a nice job explaining what database are, how they work, and key terminology. The meta message in my view: Get ready for discovery challenges accessing enterprise databases. Ball counseled lawyers not to assume queries retrieve all relevant records and not to assume database administrators (DBA) know what they are doing.
Judicial Roundtable. This was the closing session of the conference with about 8 judges. Capturing the dialogue was hard because there were so many topics covered and for many, the jurists disagreed (rather vehmently in some instances). The bad news is the law is unsettled; the good news is that lawyers will have plenty of work to keep them busy resolving the law of e-discovery.
I also attended a session on future technologies and e-discovery where panelists discussed cloud computing, server virtualization, and social media, among others. My take away from this session, when I integrate it with the other discussions, is that we are long ways off from a settled body of e-discovery law. It is clear that the technology moves much faster than the courts.
Since this conference was, after all, a deep dive into technology, I feel free to let my inner geek show. Today cloud computing looms large. Just consider where we may be in a few years…. quantum computing or DNA computations, both of which have had successful proof of concept demos. Try capturing a snapshot of RAM in a quantum computer or reverse engineering a DNA computation – we may need physicists or molecular biologists as expert witnesses in the future. This is not a prediction, only a reminder that it’s hard to anticipate the tech questions EDD experts will face.
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