By Ann W. Parks

Judge John Facciola, Howrey’s John Rosenthal, Judge Paul W. Grimm, Judge Shira Scheindlin and Judge James Francis discuss e-discovery at a June 24 training program for the federal judiciary

It’s not often that you get to teach 60 federal judges a thing or two, but organizers of the 2008 E-Discovery Training Program — sponsored by the Federal Judicial Center and Georgetown Law CLE — managed to do that and much more at a recent two-day seminar.

Panelists at the June 23–24 event included attorneys and judges, many of them Georgetown Law alumni, who helped bring the judiciary up to date on subjects like the preservation and admissibility of electronic evidence, sanctions for discovery violations and even computer technology.

“[Most] of the attorneys in this country wouldn’t know ‘metadata’ if you hit them over the head with it,” noted John M. Facciola (L’69), a magistrate judge on the U.S. District Court for the District of Columbia.

The discovery of documents in litigation used to mean finding them in a file cabinet. In an electronic world, the process has become infinitely more complicated — as documents, e-mail and photographs can be manipulated, passed from computer to computer, changed or deleted. Electronic technology can make searching within the documents vastly easier, but locating relevant documents in the hands of a corporate defendant, for example, can involve millions of pages of information and millions of dollars in costs, especially if forensic data experts are needed.

“There’s no simple press a button, tell me where my data is,” said Howrey’s John Rosenthal, who served on a panel with Ron Hedges (L’77), a former U.S. magistrate judge who is now with Nixon Peabody; and Crowell & Moring’s Jeane Thomas (L’89). Rosenthal, Hedges and Thomas discussed what triggers a potential litigant’s duty to preserve documents and the scope of that preservation. While some attorneys will want a court order requiring an opponent to preserve absolutely everything in anticipation of litigation, there may be no reasonable way to do that short of shutting down the opponent’s business and turning the computers off.

“Preservation is not like turning an on/off switch,” Thomas remarked.

Lawyers and judges discussed relevant federal rules in this area dealing with accessibility of information, discovery conferences (designed to limit the scope of e-discovery); form of production (is handing over images or print copies as opposed to the electronic document acceptable?); and sanctions. Paul W. Grimm, chief magistrate judge of the U.S. District Court for the District of Maryland who authored a 101-page opinion on the subject last year, discussed the admissibility of electronic evidence — exploring such things as relevance, authentication and hearsay issues. Conference participants received a host of materials including the entire text of Grimm’s Lorraine v. Markel American Insurance Company opinion and a checklist of potential authentication methods.

“It’s like pilots — you know they know how to take off, but you’re glad they have a checklist,” Grimm said.

Other participants included Barbara Jacobs Rothstein, director of the Federal Judicial Center; Larry Center, executive director of Georgetown Law’s CLE; Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York; Judge James C. Francis IV of the U.S. District Court for the Southern District of New York; Judge David Waxse of the U.S. District Court for the District of Kansas; and Judge Francis Allegra of the U.S. Court of Federal Claims.