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E-Discovery – More than Just Buzz Words

09.30.08

In December 2006 the Federal Rules of Civil Procedure changed the manner in which lawyers had to deal with ESI (Electronically Stored Information – a new acronym from the Federal Rules). Having worked with computers since 1967 this was hardly a news flash since ESI has been part of my 30 years of litigating disputes about failed computer system implementations, software copyright infringement, and software trade secret misappropriation. But most lawyers and judges are still trying to understand IT lingo let alone what IT does.

Buzz Words Abound

Notwithstanding that every vocation has its own buzz-words and lingo, IT and law unrelated, logically or any other way. There have been a number of court rulings that adversely impact parties who destroy ESI that should have been saved, so it has become incumbent for lawyers to learn more about IT. Ironically in order to be successful as a lawyer one must be a good communicator, whether in writing and/or speech, but few lawyers have figured about that they need to change their orientation and learn how IT operates, not just learn some buzz words. This is not about buzz words, rather lawyers need to learn about the tools that they are totally dependent upon. Although I have driven automobiles my entire life, I could not repair an engine to save my life, but I have learned enough to intelligently operated and deal with problems as they arise.

Judges Don’t Get IT Either

Not much of a shock, but since judges are lawyers, and lawyers do not have IT training it is should not be a shock that most judges do not understand IT. So in today’s hurly burly litigation it becomes the job of lawyers to educate judges regarding the ESI in their cases or risk being penalized. As I have pointed out in other blogs, papers, and speeches, one way to help bridge this gap is to use a Special Master. Having served as a Special Master in federal and state cases for +20 years it seems to me that once the parties and judges have a better understanding of IT, ESI issues in dispute have a way getting less complicated.

IT Gurus May Not Know the Law 

Once upon at time I read a 110 page opinion interpreting an aspect of how the Copyright Act affected a software dispute, and it seems to make little sense to me. However as one can image it is unlikely that an appellate court would challenge a trial judge’s 110 page opinion, so that 110 page opinion became the federal law relating to that aspect of software Copyrights. A few years later I took the deposition of the computer scientist who served as the Special Master for the judge who wrote the 110 page opinion in another software Copyright case. Although the computer scientist had a Ph.D. from a top university and was a well-respected professor, during his deposition he admitted that he had never ever read the Copyright Act, nor had he ever read any legal opinions in other cases, nor had he studied law. No wonder the 110 page opinion made no sense. So it seems that even judges need to understand the limits on Special Masters and learn about IT themselves.
 

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