Enlisting Judges in Taming eDiscovery Process

September 5, 2013

Philip Favro at e-discovery 2.0 holds that the often overwhelming eDiscovery process could be tempered with the help of our judiciary system, he shares in “The Need for a More Active Judiciary in eDiscovery.” Hmm, would this apply to secret judicial proceedings?

Favro writes:

“In a recent article published by the University of Kansas Law Review, Professor Steven Gensler and Judge Lee Rosenthal argue that many of the eDiscovery challenges facing lawyers and litigants could be addressed in a more efficient and cost-effective manner through ‘active case management’ by judges. According to Professor Gensler and Judge Rosenthal, a meaningful Rule 16 conference with counsel can enable ‘the court to ensure that the lawyers and parties have paid appropriate attention to planning for electronic discovery.’

“To facilitate this vision of a more active judiciary in the discovery process, the Advisory Committee has proposed a series of changes to the Federal Rules of Civil Procedure. Most of these changes are designed to improve the effectiveness of the Rule 26(f) discovery conference and to encourage courts to provide input on key discovery issues at the outset of a case.”

The article goes on to describe the changes proposed by the University of Kansas Law Review advisory committee. For example, they suggest that Rule 26(f) discovery conferences be required to include a discussion of any issues surrounding electronically stored information (ESI). See the post for more details. Favro emphasizes that, were these recommendations to be implemented, their success would depend on whether the courts take them seriously. Will judges find it worth the effort?

Cynthia Murrell, September 05, 2013

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