e-discovery is only going to get tougher
with the expansion of Internet commu-
nication. “Five years ago, Facebook was
nothing more than Mark Zuckerberg’s
online yearbook. Now, social media is
they’re the first line in dealing with dis-
covery disputes on the federal bench,
says Browning Marean III, senior coun-
sel in DLA Piper’s San Diego office and
cochair of the firm’s electronic discovery
“Lawyers are being held to a level of competence that
requires their awareness and understanding of the
technology that’s used in every case,” Facciola says.
pervasive and a growing problem for a
lawyer. It wasn’t integrated into mainstream disputes in commerce, and now
it is. And while you could track information on servers before, now it’s in the
cloud. Every procedural challenge today
is like the tip of an iceberg.”
U.S. MAGISTRATE JUDGE, U.S.
DISTRICT COURT FOR THE DISTRICT
PAUL GRIMM’S DOLLARS-AND-SENSE
APPROACH HAS MADE HIM A LEADING
ADVOCATE FOR PROPORTIONALITY.
in clear language and cooperate to the
maximum extent possible, in line with
[the Sedona Proclamation].” Patrick
Oot, special counsel for e-discovery at
the Securities and Exchange Commission and general counsel of the E-Discovery Institute, adds that Grimm’s
focus on rule 26(g) (certification requirements applied to initial disclosures)
was “very well-rounded” and has made
Grimm critically important to the latest update of the Federal Rules of Civil
Procedure. “He’s taken the baton from
Judge [Lee] Rosenthal,” Baron says.
Grimm says that keeping up with
EVERYBODY WHO KNOWS Facciola seems
to want to buy him a beer—except, perhaps, for the remaining judges, lawyers,
and law school deans who haven’t yet
heeded his nearly two-decade-old call to
start learning about their clients’ technology and take responsibility for it.
Facciola has suggested that lawyers
who don’t understand technology may
be committing malpractice. “Uniquely
in the history of the American bar, law-
yers are being held to a level of com-
petence that requires their awareness
and understanding of the technology
that’s used in every case,” Facciola says.
“That’s very dramatic.”
His key e-discovery opinions include:
Citizens for Responsibility & Ethics in Wash-
ington v. Executive Office of the President
(which forced preservation of digital
media in government); United States v.
O’Keefe (which set guidelines for keyword
challenges); and Equity Analytics v. Lundin
(which set guidelines for challenges or
defenses of search methodology).
“Magistrate judges are really the
shock troops of e-discovery” because
readiness and response group. Facciola,
Marean says, does his job with “humor,
humility, and honesty.”
Facciola is a busy teacher in the ex-
panding number of e-discovery CLE
programs, but he believes that the cur-
riculum needs to become standard
coursework for law students. He says
that instruction in civil procedure and
evidence should be changed to fit the
evolving digital environment.
Lisa Holton is a freelance business journalist in
Chicago. Email: Lisa@TheLisaCompany.com.