New Views From the Bench of E-Discovery at LegalTech

What do judges see during electronic discovery when they see a motion to compel responded to by a paralegal for the organization -- or a vendor? The answer is a far from flattering portrait -- not of paralegals or of vendors -- but of the legal team and the case they're bringing before the court.

That question represented the first glimpse of "The View From the Bench -- Why the Legal Industry Needs to Change and Embrace Technology," the second plenary session at LegalTech West Coast 2011, presided over by U.S Magistrate Judges Suzanne H. Segal and Jay C. Gandhi, both of the Central District of California.

It would seem obvious that such a declaration should be written by a lawyer or an expert consultant. But the judges presented this document as the kind of unnecessary error they see far too often during the discovery process.

As Segal admitted: "Like all judges, we know very little about technology." The onus of technological expertise is on the shoulders of those on the other side of the bench: when it comes to preservation and production, you'd better make it clear how you've met your e-discovery obligations and you'd better make it concise or face the consequences. Gandhi iterated, "I come from the world of private practice, so I firmly believe in sanctions."

Segal recommended that rather than fall prey to preservation not acting fast enough and not acting broad enough, err on the side of caution if you want to impress the court. Craft a litigation hold in memo format -- two pages that talk about the litigation and identify the appropriate people. And have a follow-up plan about what to do with the existing information.

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Source: law.com
By: Michael Roach