What do you do when you’re conducting a virtual conference educational session past 8:00pm your time and you need a terrific blog post topic to cover quickly? You count your blessings that Craig Ball is there to deliver one for you with his usual insight on the discovery process and why you should care about eDiscovery and digital evidence!
Craig’s post (Why E-Discovery and Digital Evidence?) on his excellent Ball in Your Court blog is his presentation to his upcoming students as to the context of what eDiscovery and digital evidence is and why it matters.
Craig begins by noting that “[f]or every hour spent in trial, attorneys and trial teams devote hundreds or thousands of hours to discovery and its attendant disputes.” They never tell you that in the many TV shows we’ve seen about practicing law over the years. He also notes that “discovery is a trial lawyer’s most daunting ethical challenge. It demands lawyers seek and surrender information providing aid and comfort to the enemy—over the objections of clients, irrespective of the merits of the case, and no matter how much they distrust or detest the other side. Is there a corollary duty to act against interest in any other profession?” Good question.
Craig also notes: “Civil discovery is a high-stakes game of ‘Simon Says.’ Counsel must phrase demands for information with sufficient precision to implicate what’s relevant, yet with adequate breadth to forestall evasion. It’s as confounding as it sounds, making it miraculous that discovery works as well as it does. The key factors making it work are counsel’s professional integrity and judges’ enforcement of the rules.” And, speaking of rules, Craig highlights FRCP Rule 34, while noting: “The simplicity of the rule hardly hints at its complexity in practice. A multibillion-dollar industry of litigation service providers and consultants exists to support discovery, and a crazy quilt of court rulings lays bare the ignorance, obstinance, guile, and ingenuity of lawyers and clients grappling with the preservation and exchange of electronic evidence.”
But my favorite part of the post is Craig’s example of how discovery is put into action with a seemingly simple “slip and fall” case involving claims that the slip was caused by roasted chicken grease on the floor (simple, right?) – the potential scope and variety of discoverable data in even a theoretically simple case like that and what the plaintiff might request (e.g., pictures and video of the accident scene, requests of recent transactions involving roasted chickens to indicate how the grease might have gotten there, etc.) and what the defendant might request (e.g., texts, call records, even device data from phones and smart watches, etc.). This “run-of-the-mill slip and fall case” can be far from run-of-the-mill when it comes to the eDiscovery and digital evidence issues to be discussed, negotiated, argued over and compelled (when each party objects to the discovery requests). That’s a great example of context!
Craig’s post has much more in it than I’ve covered here, so feel free to check it out here! And, thanks, Craig, for a new terrific topic at just the right time! 🙂
Speaking of my virtual conference educational session last night, I had a great time presenting the session Applying Technology to Address Discovery Challenges Today and Tomorrow at the Summer Refresher Virtual Conference! Thanks to the San Diego Paralegal Association, ACEDS Orange County chapter, June Hunter for announcements and tracking questions from the audience and Marla Mohr for a wonderful introduction! If you missed it, the session was recorded and should be available soon. There are also still five upcoming sessions for the eDiscovery Summer Refresher Virtual Conference and you can register to attend those here!
So, what do you think? Does Craig’s post help you better understand why you should care about eDiscovery and digital evidence? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.