It's Time to Start from Scratch': Judges and Experts Project Next Decade of Discovery

Think back to the dawn of the 2010s when you were young and your whole life was still ahead of you. Think about what life was like wayyy back then. There was Angry Birds and the first iPads and Mark Zuckerberg on the cover of Time Magazine, which you could purchase in its tactile form on an actual news stand with physical money. Inner-city travel was the domain of a thing called taxis. Oprah and “Lost” were still on the air. The Cubs were lovable losers. Myspace and Blockbuster and appointment viewing and Kanye West, Creative Genius were all things that existed. The Cybertruck was just a twinkle in Elon Musk’s eye. And if you wanted to vacation in another place, you couldn’t just plunk down eighty bucks to stay in the guest house of a person you’ve never met.

We’ve come a long way -- 18,000 Dow points, three Tom Brady Super Bowls, two good Star Wars movies and a Lin Manuel Miranda -- since those heady days of early 2010. But one thing hasn’t changed. And that thing, like an undying Emperor Palpatine, is eDiscovery.

Let’s face it. While we’ve made strides, eDiscovery is still expensive, still cumbersome, still risky, still combative.

So, as we sit on the brink of a new decade and all of the hope and excitement and anxiety that such a big new chapter entails, we’ve asked an esteemed bunch of judges, academics and practitioners to share their visions, predictions and resolutions for discovery and the legal practice at large. And while you’ll notice that not all share our opinions (i.e. that eDiscovery is a problem to be solved), the gist of some of their answers -- more collaboration, less quarreling, better tools, a brand new start entirely -- show that there is much work to be done, and that discovery, and the legal profession more broadly, are still very much ripe frontiers for innovation and problem solving.

From the Judges

“In cases where large amounts of data need to be searched, my resolution for the parties is for them to agree on an eDiscovery protocol and to cooperate in making the search process as cost-effective and efficient as possible. If the parties do so, there will likely be few disputes and the case will proceed as fast as possible.”-Judge Joy Flowers Conti, Senior U.S. District Court Judge, Western District of Pennsylvania

“My hope is that in 2020, stakeholders will make an effort to coordinate efforts to balance privacy interests with the need for access to information in litigation and otherwise. A patchwork of corporate privacy policies, state biometrics laws, and national data regulations serves no one's interest in the long run.”-Judge James C. Francis III, U.S. Magistrate Judge, Southern District of New York (Ret.)

“I would like 2020 to be the year when form of production disputes disappear. With Rule 34(b) of the Federal Rules of Civil Procedure setting forth clear guidelines for discovery requests and responses, both sides should understand their adversary's position early on. If litigants followed the procedures set forth in the Rule, and conferred promptly when they disagreed, judges and special masters would not learn of such disputes for the first time many months into the discovery process, as occurs all too often at present.”

-Judge Frank Maas, U.S. Magistrate Judge, Southern District of New York (Ret.)

From the Experts

"I hope lawyers learn to ❤️ emojis. So many lawyers fret about emojis because they are perceived to be ambiguous or frivolous. Some lawyers have even gone so far as to advise their clients to ban emojis in the workplace. However, emojis have become an essential part of how we communicate with each other, and banning emojis in the workplace effectively tells millennial and Gen Z employees that they aren't welcome."-Eric Goldman, Professor at the Santa Clara University School of Law and Director of the school’s High Tech Law Institute

“I hope that attorneys resolve to listen openly to new legal-oriented product ideas and pitches, even when they claim to absolutely revolutionize the practice of law – and even if they challenge the status quo within the profession and threaten to change how attorneys practice. But I also hope that attorneys resolve to use their skills to honestly question and test those ideas, to investigate them and share their thoughts, and to ultimately learn from the experience – and thoughtfully consider how those new approaches might integrate into workable solutions when presented (and tested).”
-James A. Sherer, Partner, BakerHostetler

“My resolution for the decade ahead is more of a pipe dream: I think it’s time to toss the Federal Rule of Civil Procedure which were originally drafted in 1937. Sure, we make amendments each year in an attempt to stay current with the times—but that process is slow, cumbersome, and clearly ineffective. As we near the 100 year anniversary of the adoption of these rules, it’s time we realized that neither the world we live in nor the litigation we’re involved with looks anything like 1937. It’s time to throw the baby out with the bathwater and start from scratch.”
-William Delgado, Founding Partner, Delgado Tarango O’Neill

“Even as we hear more about lawyer technical competency, the competency gap will grow as trials disappear and discovery further decouples from the courtroom. Those who set standards of lawyer competence won't draw the circle to exclude themselves however modest their technical skills. So, competence in eDiscovery must remain a cul-de-sac for curious advocates and litigation support specialists. Accordingly, I resolve to help the cadre of seekers who value technical competency find their way, and work harder to understand and explain the underpinnings of information technology in ways that engage, enlighten and do justice for all. Won't you please resolve to pass it on, too?”
-Craig Ball, Texas Attorney and Forensic Technologist

"It’s the same resolution every year: make my clients’ lives easier. In the discovery context, that means using the right tools and workflows to ease harvest and review, which makes the process less burdensome and more bulletproof before the courts."
-David Slarskey, Founder, Slarskey LLP

“In 2019, I would like to see law firms resolve to continue to push the boundaries on their fee setting. With competition rising on all sides (from other lawyers, from branded networks, from do-it-yourself legal tools), law firms need to focus on building out consumer-centric pricing models. This includes eliminating uncapped and hourly billing, which delights lawyers, but makes consumers of legal services chafe.”
-Jared Correia, CEO of Red Cave Law Firm Consulting

“I’m excited to watch the regulatory evolution we’re seeing in places like California and Utah continue or even accelerate. These changes herald an openness to new ideas and new participants in the legal sector that has tremendous potential. As always, I’d love to see more high-quality technology talent from outside legal come into legal. It’s true that the regulatory changes may make this more likely but the legal innovation sector is most effective when it considers a large spectrum of diverse voices. Finally, like many people, I’m super interested to watch what Clio does with its huge bag of cash. That should be fun to watch.”

-Dan Lear, Legal Innovator, Facilitator, and Blogger, Right Brain Law

“More encouragement for healthy work environments and life/work balance is what I'm wishing for in 2020 and onwards. Mental wellness in the legal industry hasn't been much more than a discussion until recent years; a landmark study found that 28 percent of working lawyers struggle with depression. From encouraging emotional intelligence in the workplace and prioritizing wellness, to adopting time-saving technologies, and embracing flexible work options such as remote work and virtual offices, it is time to transform methods of the past, leading into a healthier future for the industry.”

-Madaline Zannes, J.D., Author and Legal Technology Expert, ZannesLaw

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