Joe Looby, director of The Decade of Discovery, speaks during a panel on "The Evolution of E-Discovery Law and Technology" with Judge Shira A. Scheindlin, U.S. District Court for the Southern District of New York; Judge James C. Francis IV, U.S. Magistrate, Southern District of New York; and Jason R. Baron, member of Drinker Biddle’s Information Governance and eDiscovery practice.
The E-Discovery Field Takes Center Stage During Cardozo Law Tech Talk “The Decade of Discovery”
By Janice Weber
The Decade of Discovery, attorney and filmmaker Joe Looby’s documentary, screened on November 11, 2014, at the Benjamin N. Cardozo School of Law as part of the school’s innovative Tech Talk series. The Evolution of E-Discovery Law and Technology, the third installment of the series, was organized by the Cardozo Data Law Initiative (CDLI) and moderated by CDLI Executive Director Patrick Burke. The program included a panel discussion after the film that featured Looby and three influential players in this real-life law drama: Judge Shira A. Scheindlin, U.S. District Court for the Southern District of New York; Judge James C. Francis IV, U.S. Magistrate, Southern District of New York; and Jason R. Baron, former director of litigation for the U.S. National Archives and Records Administration, senior counsel for the DOJ, and current member of Drinker Biddle’s Information Governance and eDiscovery practice. Both Judge Francis and Baron sit on the CDLI Board of Advisors, and all three are active members and advisors to the Sedona Conference, the influential think tank/working group that continues to play an essential role in the development of law, policy and best practices in the field of e-discovery.
Before “e” was appended to the word discovery, before the search for discovery evolved into a high-tech field involving things like big data, metadata and information governance; ESI, AI, TAR and CAR; and predictive coding, seed-sets and advanced analytics—not to mention the need for a glossary to wade through the growing e-discovery lexicon—discovery, as first allowed in the Federal Rules of Civil Procedure in the 1930s, was designed to be a straightforward, cooperative, rule-based process to enable all parties to a civil action to find, present and exchange relevant information. But something happened along the way; the genteel world of cooperation began to unravel. Aided and abetted by the deluge of data brought on by the advent of the electronic age, the discovery process became increasingly contentious, adversarial and costly.
The Decade of Discovery explores the rapidly changing world of law and technology in which the “smoking gun” and crucial evidence reside not on paper but in a vast, seemingly impenetrable digital universe. “At the start of the decade, the justice system wasn’t working properly,” said Looby. “As society moved from paper to this great big sea of electronic records, the rules and law couldn’t keep up with it.” Judges, along with attorneys, advocates and volunteers, saw that the system was in crisis, and they joined forces to help fix it. In doing so, they shaped the future of e-discovery—and they continue to do so. Calling these pioneers of e-discovery “true American heroes,” Looby discussed the significance of the early decisions on electronic evidence and discovery made by Judge Francis in such cases as Rowe Entertainment, Inc. v. William Morris Agency, Inc.; Judge Scheindlin’s groundbreaking opinions in Zubulake v. UBS Warburg; Jason Baron’s lifelong work in bringing science, measurement and advanced data search techniques into the law; and the work of the late Richard Braman, who founded the Sedona Conference in 1997.
Prior to these actions, the search for discovery was largely done manually. “You just put young lawyers in a room, put stacks of documents in front of them, and said ‘Find the stuff that's relevant,’” said Judge Scheindlin, “And that was the way it was done originally.” Before long, discovery had evolved into a “high-tech puzzle,” said Looby, “involving computers and information science, none of which was taught in law school.” As the product of the search for discovery yielded millions, then billions, of data objects, discovery not only became more complex—it became more expensive. Clearly, the search for discovery was becoming weaponized, and it became common practice to bury opposing parties under mountains of data that were too complicated and expensive to mine for responsive, relevant evidence. “Judges are losing patience on a daily basis with contentious and expensive discovery,” said Magistrate Judge John Facciola, another star of the film. “There is now, in my view, compelling evidence that the [discovery] system was never designed to be so adversarial.”
In answer to a question from the audience regarding the cost–value relationship between quantity and quality, Judge Scheindlin acknowledged the dilemma facing judges and attorneys. “The catchword these days is proportionality,” said Judge Scheindlin. “We’re never going to get every last grain of sand; it can’t be done, by people or machines.” What matters is identifying what is really important, what is really needed. “I wish the machines could tell us that, not just what’s relevant or responsive, but which make the point, which are really needed to decide the case.”
Data is doubling every two years, Jason Baron reminded the audience of law students, attorneys, professors and professionals. “In 2020, if we were to come back for a sequel to this film, we would be living in a world that has a thousand times the data that we have now. This is a fact of life.” The impact on our daily lives and the law profession has been profound. There is no longer time (or inclination) to go through the electronic equivalent of paper anymore, said Baron. “But today, we have more visibility into the data because of the power of the software to look at a billion objects, using tools like predictive coding and AI and technology-assisted review. It is very exciting, but as Judge Scheindlin says, you’ve got to keep up.”
Looking out to the young law students in the audience, he said, “A win for me would be for two students to leave this Tech Talk excited about this field of e-discovery and big data, analytics and information governance. The opportunity to learn is right here. If you do apply yourselves, if you know something about this field, you really do have an extraordinary power that others do not have.”
For more information about Cardozo Law and its groundbreaking Data Law Initiative, visit www.cardozo.yu.edu/CDLI.
For more information on the film, visit www.10thmountainfilms.com.
