I
L
T
A
W
H
I
T
E
P
A
P
E
R
|
C
O
R
P
O
R
A
T
E
L
E
G
A
L
D
E
P
A
R
T
M
E
N
T
S
9
F E D E R A L R U L E O F C I V I L P R O C E D U R E 3 7 ( E ) A M E N D M E N T : D E - R I S K I N G E - D I S C O V E R Y F O R C O R P O R A T I O N S
Kathleen E. Ratcliffe is a
Senior Paralegal/Information
Specialist for the Ohio Atoerney
General's Office. She is a
seasoned senior paralegal and
information specialist whose
expertise focuces on the ever
evolving world of e-discovery
and ESI, regulatory oversight,
complex litigation, civil litigation,
criminal litigation, internet law,
trademark litigation, knowledge
management, and public
records requests.
I was also pleasantly surprised and pleased while
at the Ohio Annual ILTA conference, where a panel
of expert witnesses, including a District Court Judge
and two distinguished attorneys pondered these exact
same questions. The Judge made clear he does not
allow discovery shenanigans and in doing so, heads
off most discovery disputes before they even become
one. Sigh, if all judges could be like him. But I remain
encouraged that we are heading in that direction.
As one of my personal idols, Ralph Losey, recently
wrote in his post, Cautionary Tale from Brooklyn:
Search Terms 'Designed to Fail', "E-Discovery is about
evidence. About truth. You cannot play games. Either
take it seriously and do it right, do it ethically, do it
competently; or go home and get out. Retire already.
Discovery gamesmanship and lawyer bumbling are no
longer tolerated in federal court. The legal profession
has no room for dinosaurs like that."
9
Mr. Losey is right. And I think everyone is
recognizing that, including the courts and the parties.
While we may still be grappling with how the courts
interpret the amended rule, it will iron itself out. And
when it does, both plaintiffs and defendants will be
better suited to quickly and competently identify the
relevant data. In the meantime, let's look to corporate
legal departments and root them on. ILTA
1. See FRCP 37(e) committee notes
2. Id.
3. Id.
4. https://www.logikcull.com/sanctions (download the report here)
5. Id.
6. https://www.jdsupra.com/legalnews/the-next-era-of-e-discovery-is-already-49185/
7. https://www.law360.com/articles/1210065/why-technical-skills-can-help-land-your-legal-dream-job
8. https://www.jdsupra.com/legalnews/the-next-era-of-e-discovery-is-already-49185/
9. https://e-discoveryteam.com/2019/10/20/cautionary-tale-from-brooklyn-search-terms-designed-to-fail/
