E-discovery: where we've been, where we are, where we're going.

Position:Introduction into Panel Discussion, p. 1-33 - Discussion

Introduction (1)

It is rare that we in the legal profession are fortunate enough to have on record expansive, deliberative, and real-time jurist insight about an area of law. An even more infrequent event is the recorded interaction between two jurists who are universally recognized as both thought leaders and visionaries in an area of law that is developing (and some would say, maturing) as quickly as electronic discovery. I am privileged and honored, both personally and on behalf of the Ave Maria School of Law, to have moderated just such an interaction between U.S. Magistrate Judges John Facciola of the U.S. District Court for the District of Columbia, and Andrew Peck of the U.S. District Court for the Southern District of New York. The discourse is lively, instructive, and a testament to the importance and increasing impact electronic discovery will have on litigation in the 21st Century. Our thanks to Judges Facciola and Peck for investing the time and effort to participate in what we hope to be a continuing conversation.



It is nice to be back here where the weather is warmer than up in New York. While the subject we are talking about is e-discovery, the fact of the matter is that there is no other type of discovery anymore--everything is electronic, whether we are looking at e-mail or social media, or even a paper outline like this. It may be printed at the moment, but it came from Professor Teppler's computer.

Some organizations are saying that we should cut out e-discovery because it is too expensive and too many lawyers cannot handle it. If we eliminate e-discovery, we would be going back to a pre-1938 world, when it was trial by ambush. We have to get a handle on it. The passing of the torch from the older generation to people who have grown up with computers will make a big difference.

Corporations are saving far too much information now because storage is so cheap. It is easier to save information than to have the sales force take time at the end of the month and cull their e-mails. The problem is that when a lawsuit hits, you can no longer go to the corporate central paper files and say, "This is a dispute about the XYZ Contract. Where is the XYZ file?" and then open the filing cabinet and there it is. We have to find a way to manage the vast bulk of information that corporations and individuals are keeping and generating without pricing everybody out of the court system. That is what we are going to be struggling with, going forward.


Thank you Judge Peck. One thing that keeps coming up is that all of this is so new. It has been ten years and this is still new and still evolving. It is one of the few areas of law in which we are seeing this inertial movement toward standard approaches and practices, taking into account, of course, that we have an ill-defined way of looking at technology as something dynamic that changes as we speak. When we look at stare decisis and precedential decisions, we are looking back at a very reasoned and deliberative manner at developing legal principles. But those legal principles do not take into account disruptive technology. They do not take into account Facebook or cloud computing. They do not take into account things we take for granted, but that are now making their way into the universe of litigation.

How do we evaluate digital information that is now being measured in exabytes? For those who do not know, megabytes are the little guys. Then there are gigabytes, which are one thousand megabytes; and then there are terabytes, which are one thousand gigabytes; and then there are petabytes, which are one thousand terabytes; and then there are exabytes, which are one thousand petabytes. Eventually, you get to a point where you have more bits of information than there are particles in the universe.


As a matter of arithmetic, an exabyte would contain every word ever spoken since human beings spoke.


We now have to manage that in litigation because all of this is potentially discoverable information. Why is it discoverable? As Judge Peck mentioned, most evidence will come out of a computer these days, even in a simple slip and fall case. You might ask: "What about that memorandum that talked about the sloppy housekeeping practices in the store that allowed water to sit on the floor for hours?" That will be stored in a computer. So, if you think that litigation does not involve a computer, you have to think again.

With that, we will get to something that should be at the forefront of every attorney's mind, and should be on the forefront of every client's mind: competency. Clients should assume that the attorney they are dealing with has a level of competency and fluency in the area where the client's issue is being solved. Attorneys have a duty of competency both under state bar and ABA rules, which largely run parallel to each other. We have the competency requirements to be competent and to maintain competency. At the forefront of seeing attorney competency are courts and judges. These two judges here today have experience with observing a high volume of traffic, with all different flavors of counsel, from solo practitioners to large law firms.

Let me ask Judge Facciola: What have you seen?


I have seen incompetence that would make the angels weep. One of the growing areas in criminal litigation is child pornography. It takes two forms. First is the trading of the pornography. Second, and worse, are efforts to find children who are willing to have sex. Basically, an FBI agent will be in a chat room pretending to be a man who is divorced with a six-year-old daughter, whom he can set up with someone on the other end of the chat room. Once they agree, they set up an assignation. Once they cross state lines--which, in the District of Columbia, is nothing more than taking the Metro from Beltsville to Rhode Island Station--they have crossed state lines for the purposes of enticing a child, which is a twenty-year felony. I had a preliminary hearing in one of these cases. It involved rather unsophisticated technology, but you had to know how a chat room worked. You particularly had to know why the police were able to say that this was his computer, based on the ISP address.


Would you please explain what a chat room is?


A person goes into a chat room called "Kiddies." Here is Mr. X, and here is the police officer, on different computers. Mr. X goes into the chat room and says, "I have N number of pictures here--good stuff." He gets in touch with Y, and Y and X agree to exchange the pictures. Every time the FBI seizes child pornography, each piece of the pornography has a hash value. A hash value is a unique number. For example, assume you have a Word Perfect document that has a hash number. You add one comma to it and it has a different hash number. In the old days, the FBI would say that the hash value of the chat room matched the hash value on the person's computer, and this would be enough to get a search warrant.

Now, the variation of the theme is a police officer goes into a chat room called "Kids are Alive," which is a tipoff that this is for people who are not only interested in child pornography, but are interested in having sex with children. The FBI agent explains that he is divorced, his six-year-old daughter is with him on the weekends, and asks whether Mr. X is interested. The FBI agent may even send a phony picture of the child and they begin to talk. The conversations are disgusting. When Judge Peck and I review the search warrants, the FBI insists that we look at the child pornography and it is horrifying. In any event, they are in this chat room and we know that this computer has a particular ISP address by which the information is sent to that computer. It is something like "" By virtue of knowing this, we at least know that this computer, with this ISP address, is in this home. That is probably enough to get a search warrant.

In the preliminary hearing, the police officer was asked about this and how it worked. With every question defense counsel was asking, he kept digging the hole deeper and deeper for his client. Finally, I looked at him and directed counsel to approach the bench. If a judge does this, you know things are not going to go well. So I said, "Do you know what you are doing?" I guess he thought he would be charming and said, "Judge, I just do not understand this computer stuff." So I said, "We have a problem here. I am going to declare a mistrial, and I am going to appoint the defendant a lawyer who knows what he is doing."

So, to answer your question, that was the worst example of incompetence that I have seen. The penalty for trading in child pornography is twenty years. Most of these defendants do not have a criminal record. Many of them have had no relationships of a romantic nature. You can imagine what will happen to them when they get to jail. And here was this lawyer with a client facing twenty years, and he did not know how a chat room worked.


Judge Peck?


I must say that I do not have an example as interesting as that one. But it is still not unusual for a lawyer pointing to their gray hair or lack of hair and saying, "Judge, I can see you are of a certain age, too. You know, we just do not understand how these computers work." The one who did that most recently did it as his charming introduction of his young associate. I said to myself, "Thank goodness he knows his limitations enough that he has somebody who works for him who does understand this."

I guess the biggest example I can give of lawyer incompetence (and I do most of my discovery rulings from the bench, either with a recording or court reporter, on the record, because there just is not enough time in the day to write opinions on "is document request number thirty-two overly broad...

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