Judges on e-discovery: keep it in perspective.

• Position: E-DISCOVERY

At a recent panel discussion n e-discovery, three influential judges agreed that lawyers must take the lead on decisions of proportionality rather than rely on the judges, who are less familiar with the details of the cases.

The panel, titled "Judges Meet the General Counsel Department," was held at a consortium on litigation, information law, and e-discovery. It focused on the proposed additions to the U.S. Federal Rules of Civil Procedure (FRCP) that concern e-discovery's scope, limitations, and need for cooperation.

According to Law Technology News, U.S. District Court Judge Shira Scheindlin was joined by Magistrate Judge James Francis IV who, like Scheindlin, is from the Second District of New York, and Circuit Judge Peter Flynn from the Circuit Court of Cook County in Illinois.

"How am I supposed to conduct proportionality (hearings)--especially right up front?" Scheindlin asked. "It's very difficult to know how to vet things when I know little about the case and have so little time."

Flynn agreed: "Why would anybody ask the judge--who knows the least about the case--to make the decisions?" Flynn also cautioned against "discovery paranoia--the urge to turn over the next rock, no matter the consequences. Proportionality is an attempt to get people to think about the [possible] costs of turning over the next rock."

The judges also said preservation should be viewed from a business perspective, not as a risk management tool for litigation.

"If you make...