[Disclaimer: I am attending Legaltech thanks to a free blogger's pass, so read skeptically. All opinions are my own because nobody else would want them anyway.]
[Further disclaimer: Live blogging. Errors, omissions, and snarky comments are my own.]
Day Two Keynote General Session Presentation: The Morning Show! Episode 1: The Judicial Perspective – Managing Big Data, Proportionality, Data Security, and Privacy
Join us at Legaltech’s new interactive talk show featuring some of the globe’s leading jurists who rule on bleeding-edge legal issues that shape the practice of law. Hosted by attorney and legal luminary Patrick Oot – the program will feature lively discussions including data security, privacy, managing big data, and proportionality. Whether you prefer Watch What Happens Live or Charlie Rose this is one keynote session you won’t want to miss!
The Honorable Michael M. Baylson, Senior Judge, United States District Court for the Eastern District of Pennsylvania
The Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York
Patrick Oot, Co-Founder, Electronic Discovery Institute; Special Counsel, U.S. Securities and Exchange Commission
Matthew V. Gillis, Vice President & Managing Director, LexisNexis Litigation Solutions & Professional Services
Judge Baylson: on Boeynaems v. LA Fitness International, LLC, 385 FRD 331 (E.D.Pa. Aug. 16, 2012). Plaintiffs, former members of LA Fitness, alleged membership practices were misleading and fraudulent. “Asymmetrical discovery”: plaintiffs had few documents, defendants had millions. Under the Third Circuit Hydrogen Peroxide decision, Court was obliged to allow generous discovery to determine whether case should be maintained as a class action. There had already been substantial discovery by plaintiffs, with no objection by defendant. Defendant objected to additional discovery plaintiffs sought as not relevant to the class action issue. Defendant sought cost-shifting.
Judge Peck: We judges need facts–to support objections to discovery requests, to justify cost shifting, etc. Don’t just say “it’s overly burdensome” or “it’s going to cost over $1 million.”
Judge Baylson: Lawyers need to inform judges on what is the value of the case.
Judge Peck: Breach of contract cases are relatively easy to evaluate. Where the value is more intangible, as in discrimination cases, you have to go beyond dollars and sense to present relevant evaluative information to the court. In SDNY we have discovery conferences (“bring your geek to court day”), not discovery motions. Usually the question is resolved from the bench. Works for us, other courts should try it. Our goal is always to “rightsize” discovery.
Judge Peck: If the buzzword for 2012 was “predictive coding,” for 2013 it will be “information governance.”
Mr. Oot: Question for the audience–how is the Sedona Conference Cooperation Proclamation going over with your clients? (57% of the audience responded via online poll that they have adopted predictive coding and it has helped reduce costs.)
Judge Baylson: Clients who tell their lawyers they won’t cooperate may find it costs them money in the long run.
Mr. Oot: Privilege logs (Chevron Corp. v. The Weinberg Group) are getting bigger but less descriptive, not meeting the requirements of FRCP 26(b). Privilege logs are becoming useless boilerplate. How are you incorporating FRE 502(d) (to obtain a court order preventing waiver of privilege) into your practice? (38% advise clients to enter into 502(d) orders at the start of every litigation; 38% don’t know what it is.)
Judge Peck: In my opinion, it is malpractice not to seek a FRE 502(d) order in every case where discovery is going to be substantial.
Mr. Oot: How is Computer Assisted Review (CAR) entering your practice? (50% have not used it, 32% have used it but did not disclose it, only 3% do not advise using it.)