San Jose, CA - There is an increasingly important role for e-discovery in global legal disputes, as evident in the ongoing patent case between US based Apple and Samsung from South Korea, with both accusing each other of copying designs and technology for mobile devices. India America Today expands the spectrum of understanding about e-discovery in our third article of the series, as editor Tejinder Singh spoke with California Magistrate Judge Paul S. Grewal, who recently ruled in the case and who has been focused on the technology of litigation.
With your wide experience in the field and your dedicated involvement in it, what kind of changes have you seen in the cases that come up now, compared to earlier years?
Electronic discovery or e-discovery issues are certainly much more common today than they were even just a few years ago. The kind of cases that we see in my district, which is the Northern District of California, all generally involve technology, even cases that aren’t specifically technical in nature, they all say they have a technical component, and so even the simplest employment dispute or business controversy requires the parties to produce information to one another that’s almost always held in electronic form.
When parties are struggling to understand what their obligations to produce such information are, it requires the court to intervene and make determinations as to what e-discovery should or should not be produced. So that’s how we tend to see these things. We certainly have seen many more of these disputes in more recent times than there were in the past.
What level of e-discovery technology does a lawyer need to understand to be able to deliver?
It used to be the case that e-discovery was a very specialized niche that only certain kinds of lawyers, working in very technology intensive cases, had to worry about. For example two large semi-conductor companies doing battle over a series of patents, and in those instances, the lawyers almost certainly had to be very familiar with how data was stored within their clients and what types of electronic files were readily accessible.
What is very interesting to me is that knowledge is now a requirement for almost all attorneys. Even if someone works in a very small firm or perhaps on their own as a solo practitioner and they represent individuals who are suing their employers for employment discrimination for example, because the data and the files that relate to their case are almost exclusively kept in electronic form, even those lawyers now have to have a certain level of expertise or competency in managing e-discovery issues in order to provide effective representation to their clients.
Is there a level of expertise expected from these designated experts and how often are they brought in to help out?
Yes, there is. Often times, when the lawyers are arguing that certain electronic data should be made available in a case or should not, they will rely upon experts in this field, who are both IT experts and legal experts, to provide testimony to the court, and we see that fairly often.
I don’t require, and I don’t think most courts require such testimony in every case, but it certainly is helpful when it’s presented and in particular where there are disputes about how easily accessible certain email servers may be or whether a certain database has information that is or is not relevant to a case. In those instances, experts in the field are often extremely helpful in helping the court decide what the appropriate balance ought to be.
What role can the US play in reducing international disputes or to facilitate the proceedings?
The United States litigation system has played quite a leading role. We have, in our country, requirements for the production of information in legal disputes that are generally recognized as far more extensive than other countries. For example, in places like Germany, Korea, and India, parties are generally not required to produce the same level of information or the same volume of email.
The United States has much more substantial requirements. That means that courts like the US courts have had to grapple with and wrestle with what information production makes sense, perhaps in a way that other countries have not. And yet, I find when I meet with my colleagues in other countries, we talk about these issues.
Other judges, for example, in other countries, have many interesting insights and questions about these same issues, and so I find it’s increasingly important for the US judges to understand how foreign systems work and what their requirements are so that we are all working together, rather than pulling in different directions.
What is your view on technology assisted review or predictive coding?
I think these new technologies like predictive coding offer tremendous possibilities. Time will tell whether the technology can improve to a point where some of the costs associated with producing this information is much more manageable. We are all optimistic that there are some new technologies like predictive coding or technology assisted review which will lower the cost of reviewing production and increase the amount of information that can be used in these cases.
Unfortunately, that will take some time to figure out, but I certainly am optimistic that they can contribute part of the solution to the problem.
Do you believe that judges could or should overrule the experts?
I think that ultimately judges are responsible for deciding the issues and so it’s important that we understand the technology and the landscape of information that these experts are offering opinions on. But we look to experts to advise us and provide us insight. It may ultimately be our decision to make in the end, but those decisions need to be informed by facts and by experience. Naturally, where these experts can play an important role, is in shedding light and explaining to judges what they need to know before a decision is made.
What do you recommend to make the EdRM process less expensive and more efficient?
The one thing that’s critical is that companies and other parties that are responsible for producing this information litigation have a plan early to deal with it. That is, that they should be proactive in thinking about their processes even before they are involved in litigation, in designing how their data is stored, and how it will be produced if they were ultimately to be involved in a court case.
I see many parties and companies struggle when they have not yet thought about these issues and first are confronted with decisions about how to produce and store data in the middle of an active lawsuit. That’s a very stressful, difficult time to first be confronting these issues. To the extent that thinking can be done in advance and proactively, I think they have a much better chance of avoiding some of the huge burden and expense that can often follow.
There is a need for lawyers with a specialized, sophisticated understanding of this fast-paced, multi-jurisdictional world of business. What are the key requirements?
It all goes back to eduction - it is educating oneself about the technology, it’s educating oneself about how companies are using information and storing information in their daily activities, apart from the lawsuits. It’s educating themselves about the changing legal requirements, and as you pointed out, it’s not just requirements here in the United States now, there are requirements worldwide that apply. I really think education is critical to developing the kind of expertise that’s going to be valuable to clients and to courts in resolving these kinds of disputes.
I appreciate your interest in this topic because it’s one that the court system is wrestling with increasingly on a daily basis and I think a lot of companies and technology people are also wrestling with as well.
The first article of the series was an interview with Paul Starrett, Chief Business Operations Officer of UBIC, a provider of end-to-end e-discovery and digital forensics solutions and services for corporations and law firms. India America Today, in the second of the series, interviewed Jason R. Baron, Director of Litigation for the National Archives and Records Administration (NARA) in College Park, Maryland, on the ongoing debate about the use of TAR (technology assisted review).