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Leading Judges Weigh in on eDiscovery

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By Casey C. Sullivan, Esq. on October 26, 2016 6:58 AM

At the annual Relativity Fest in Chicago earlier this month, kCura, the eDiscovery company, brought together four federal judges to discuss eDiscovery, the law, and even a bit of privacy. The panel, hosted by kCura's eDiscovery counsel, David Horrigan, featured some of the names behind eDiscovery's "most impactful rulings," Legaltech News's Ian Lopez reports.

The discussion covered everything from proportionality to the Sedona Principles to Deflategate. Here are some of the highlights.

Production and Proportionality

The panel brought together United States District Judge Nora Barry Fischer of the Western District of Pennsylvania, United States Magistrate Judge Andrew Peck of the Southern District of New York, United States District Judge Xavier Rodriguez of the Western District of Texas, and United States Magistrate Judge David Waxse of the District of Kansas. For the first time in three years, the questions posed to the judges were proposed by Relatively partner companies, rather than the moderator himself.

The first question dealt with the role judges should take in production. "Judges should and will ... take a greater role in the rules process" Judge Peck said, according to Lopez. Peck described himself as a "firm believer" in the Sedona Principles, which set forth a "reasonable and balanced approach to the treatment of electronic data."

Peck specifically called out Principle 6, which states that the responding parties "are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information." That doesn't mean judges won't get involved when needed, he noted.

Judge Fischer commented on the changes to the Federal Rules of Civil Procedure, Rule 26 of which was amended last year to emphasis that discovery should be "proportional to the needs of the case." Under the updated rules, judges now "have a number of weapons, if you will, in our arsenal to corral bad behavior," and to address proportionality, Fischer explained.

But What About Deflate Gate?

Finally, Horrigan asked the panel about Deflategate, the scandal involving the New England Patriots, tampered footballs, and Tom Brady. Oh, and spoliation too, after Tom Brady destroyed his cell phone before meeting with investigators, despite knowing that investigators wanted access to his text messages.

The judges, it seems, weren't too interested in discussing Brady or his cell phone, choosing instead to talk about privacy more generally and indulge in a bit of "what's wrong with kids these days." As Lopez writes:

Rather than meditating over this specific case, U.S. District Judge David Waxse of the District of Kansas discussed how, in his view, it's a problem that "the younger generation" doesn't understand privacy, as they send emails and put things online "that should never have been made public."

"If we as a society don't make it clear to the younger generation how important this is, we're going to get to the point" where privacy is no longer a priority, he added.

But privacy isn't just a concern for the youth, Judge Peck noted. "I am relatively confident," he said, "none of us, no matter how experienced a lawyer or judge, are reading the privacy rules or rules of service when we go on Pokémon Go or anything else."

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