The Masters Conference 2008: The “Italian Stallion of E-Discovery”

Masters LogoThe main ballroom was packed for Judge John Facciola’s keynote on the second day of the The Masters Conference.

Judge Facciola is a Magistrate Judge for the U.S. District Court – District of Columbia and has authored such sacred e-discovery opinions as:

Judge Facciola was introduced by Dan Regard of iDiscovery Solutions, the “Italian Stallion of E-Discovery” and it appeared the Judge Facciola didn’t mind the name tag one bit. Judge Facciola launched right into a very insightful and entertaining hour long speech with a healthy dose of interaction with the audience.

Right off the bat, Judge Facciola mentioned he could not get into too many specifics about the O’Keefe matter since it was still pending. But he stated that he wanted to talk specifically about “leadership” in the e-discovery world, starting with the road leading up to the recently enacted Federal Rule of Evidence 502.

Judge Facciola mentioned the the enactment of FRE 502 was an “astonishing achievement” and assured the entire room that the States will follow in line, amending their own local rules of evidence.

He then shared his amazement with the virtually unlimited amount of storage available to the average consumer. Judge Facciola admitted that he is a big fan of Bruce Springsteen, and he recently purchased a 1TB external hard drive for $200 to hold his ever-growing collection of The Boss’s music. He commented, “if I can buy a 1TB for $200, imagine what Oracle can buy. These things [hard drives] are collecting information and almost defeating our intention to find out what’s on them!”

Judge Facciola said he regularly talked to people that help the lawyers like federal agents that collect information and they constantly bemoan the fact that they have no guidance whatsoever from the lawyers except “save everything.” These folks do not know what the record policy is, and they complain that when it hits the fan, the lawyer just comes down to their cubicles and says “give me all those evaluations.” Judge Facciola commented that “it’s hard to believe there is such a dereliction in our society about collecting and preserving information.”

Judge Facciola continued stating that “a lack of a records policy, combined with a lack of sensitivity to the problem, creates a perfect storm,” which has become evident in cases like Qualcomm. “Lawyers do not now have the luxury of waiting until everything goes wrong to get involved. The corporations need to make decisions NOW pursuant to lawyer guidelines. If this is not done, I’m afraid we’re going to be entering hopeless litigation with tools that are useless.”

Judge Facciola also stated that he hears time and time again from internal corporate counsel that they are treated like “file clerks.” They do not receive respect from their outside counsel and state that representations are routinely made to the court behind their backs, often about issues and information systems that are internal at the corporation.

Judge Facciola states that “this relationship cries out for leadership. It is not right for clients to be passive in this situation. Someone has to be responsible for clear lines of authority. Budgets must be stuck to, and reviewed on a monthly basis.”

Judge Facciola recounted a story when a lawyer appeared before him representing someone who had been “caught” by an FBI agent posing as a 12-year old using an instant messaging program. Judge Facciola asked the lawyer if the instant messaging session was logged. The lawyer replied, “your Honor, I don’t really understand all this computer stuff.” Judge Facciola first expressed sadly that they’re not allowed to hit counsel in the court room, but did say that he stopped the proceedings, called the lawyer over this his bench, and stated, “do you realize you just admitted that you are ineffective counsel on record?”

Throughout the keynote, Judge Facciola interacted with the audience, asking questions and taking a few towards the end. One of his last questions was if there were any ideas on how to modify FRCP 56(f) on Summary Judgment so that both sides can get more discovery to help move the issues along. No one raised their hands.


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