Georgetown: Privilege, Ignorance and Certification

The PosseList has a report of the main points discussed at the judicial panel which closed the recent proceedings of the Georgetown Law CLE Advanced E-Discovery Institute.

Of the three points which the article picks out, I will leave on one side the mysteries  of US privilege, which you can read about for yourself in the article Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework by US Magistrate Judge John Facciola and Jonathan Redgrave.

The second point is summarised as Lawyers can no longer plead ignorance about e-discovery technology. The problem is actually more fundamental than ignorance of the technology – getting to know the rules and the case-law would be a good start, at least to the extent of having a mental flag which pops up when the case in hand has any volume of electronic documents. As the article says, there are plenty of good solutions providers out there, easily found and ready to help – if it is negligence not to know the rules, it is no less so to be unaware of the solutions. I prefer the more positive view that there is work to be won by alliances with someone who can do well the parts you cannot do cost-effectively for yourself.

The most interesting part of the PosseList’s summary concerns certification. I thought I was a lone voice arguing against what is described as “the growing clamour for ‘certification’ in e-discovery”, so it is good to find that there are others, and authoritative people at that, who fear another administrative layer on the process. I see it as a barrier to entry and a bureaucrat’s delight – the closest parallel, as I have said before, is the move towards degrees as a compulsory part of the qualification for nurses, which the UK government has just raised again.

There is no shortage of sources of knowledge and information about ediscovery / e-disclosure. The best thing you can do (to combine this point with the preceding one) is to contact two or three solutions providers and get them to tell you what they can do to help – help in educational terms, help by just showing what the technology can do and, when the problem turns up in practical form, help in doing the work.

If you do not know which ones to contact, ask me, and I will point you towards the ones whose offerings are closest to your requirements.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, CPR, Discovery, E-Discovery Suppliers, eDisclosure, eDiscovery, Electronic disclosure, FRCP. Bookmark the permalink.

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