At this year’s LTNY, Judges John Facciola (retired), Andrew J. Peck, Frank Maas and Elizabeth D. LaPorte treated eager attendees to their highly regarded opinions during the “What’s Wrong with Discovery?” session. The judges acted as panelists tasked with reflecting on the topic of e-Discovery. Why has it become so risky and expensive and, therefore, a stumbling point for litigating parties and their counsel?
A few reasons that arose in the session include: knowledge of procedures on both sides; lack of sophistication or a burying-your-head-in-the-sand type of attitude; and unwillingness to cooperate on both sides. Not an uncommon topic for anyone in the packed room were the implications for parties’ access to justice and whether the problems will get better or worse as technology continues to evolve. The judges were mixed on their opinions and timeframes, however, they were all in agreement that things will probably get worse before they get better. In their opinions, the legal profession is generally resistant to change.
According to the panel, attorneys’ mindset is an issue. For example, attorneys usually intend to gain everything possible during discovery instead of only what is needed; prefer manual review to technology-assisted review; and have not made strides to improve cooperation and transparency. Instead, attorneys continue with the approach that their clients’ data is a secret, and that it’s opposing counsel’s job to find out what they need to know.
The esteemed panel closed with a topic they wanted everyone to consider: the notion of cost. They expressed how deeply distressed they’ve become by the out-of-control cost of litigation, and the disappearance of the small company and middle class from the federal courts. Only 1 percent of cases are tried in the system today. According to the panel, we either have to figure it out or resign ourselves to very few having access to the federal court system. At this point, the concept of proportionality was raised.
Can proportionality play a helpful role since it takes into account the social value of the case as well as the dollar value? The judges stressed the importance of litigating cases as cost-effectively as possible. And while it’s an attorney’s job to educate judges on what technology options exist and their associated costs, both attorneys and judges have an obligation to help “fix” the discovery process.
One of the highlights of the session was a strong statement made by Judge Facciola about lawyers’ lack of a cost-benefit analysis before they go to war over discovery: “I want attorneys that go for the jugular, not those who go for the capillaries.”
This session and others provided LTNY 2015 attendees with a lot of valuable information. LLM, Inc. appreciated the opportunity to meet and talk with attorneys, judges and fellow vendors. If you attended the annual conference but did not have a chance to stop by our booth, please reach out if we can provide any information about our industry-leading products and services. We look forward to seeing everyone again in 2016!