Last June, Skadden Arps lawyers questioned the constitutionality of current electronic discovery rules in a 2-part article in Law Technology News, Can E-Discovery Violate Due Process? (Part 1 (7 June 2013); Part 2 (10 June 2013)).
Intrigued by their reasoning, I wrote a blog post, Is E-Discovery Due Process Argument Just Predictive Coding in Hiding?. Surprisingly, I have not seen other follow-up to their views.
Agree or disagree, their point of view merits more discussion. So I interviewed two Skadden lawyers – John H. Beisner (Partner, DC) and Richard T. Bernardo (Counsel, NYC) – to understand the arguments and reasoning in more detail.
The Organization of Legal Professionals (on whose Board of Governors I sit), organized and published a 2-part podcast interview.
Part 1 focuses on the constitutional arguments; Part 2 on whether the proposed amendments to the Federal Rules of Civil Procedure would cure the problem. (These may play immediately in your browser, depending on browser configuration settings).
I encourage you to listen to the interviews and comment here or elsewhere.