When The “E” Fits, Use It!

Boy do I wish I said that.  But the award for third consecutive well turned phrase in a publication regarding electronic discovery goes to Craig Ball.

It all started with a post on Monday morning by Monica Bay on the EDD Update blog. She reported that while at a lunch with John Roman, head of IT at Nixon Peabody, the two of them discussed the idea of  no longer using the “e” in front of e-discovery.  Said Monica, “ After all, it’s discovery — and 99% of it involves electronic files.”

 I demurred, saying that I thought e-discovery is still a phrase with a useful distinction. I noted that back in March Judge Scheindlin had made much the same comment in an interview with Ralph Losey and my response to her comment was equally relevant to Monicas. (it is set out below)  At that point the gauntlet was thrown, the line was drawn in the sand, the Rubicon had been crossed … ok, I give up …  I can’t think of a better phrase then Craig used.

But I’m told by numerous vendors that their requests for paper productions and blow backs has increase as their ED business has declined (I think the S-G Survey figure of a 9% decline in ED revenue is grossly underreported but that’s a comment for another post): the response to the economic decline by many firms has been to resort to what they know best: plain old paper discovery.

So don’t drop that “e” quite yet …there’s still plenty of other discovery around to make the phrase useful.

You can see all the comments at http://www.eddupdate.com/2009/08/is-it-time-to-lose-the-e.html#comments and mine below:

 “Second is a quote from Judge Scheindlin I found of interest: “We used to say there’s e-discovery as if it was a subset of all discovery. But now there’s no other discovery”

Now with all due respect to the Judge, I have to disagree. First, of course, we still have Depositions and Request for Admissions and Subpeona Dices Tecum and …well, you get the point. But also, down here in the the streets and out here in the fields, if I may mix a musical metaphor, where the people who don’t make it into Federal court with mega-milion dollar cases are, to paraphrase Chris Berman , rumblin and stumblin through plentiful paper productions, it’s not all about e-discovery at all.

All those general practitioners Ralph mentions on his bog are working with general counsel and city attorneys who still haven’t entered the digital era and routinely practice with bankers boxes of paper and not jewel cases of CD’s. I live in New Orleans … believe me, it’s true.”


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