Patent Law

As a follow-up to my July 2, 2008 post, you might find the article titled, "Rockin' Out the E-Law" by Jason Krause in the July 2008 print issue of the ABA Journal of interest.

E-discovery consultant Mary Mack of the Portland, Ore.-based consulting firm Fios says judges who are ruling on the finer points of e-discovery are going to have an outsize influence for a long time.

?The law of e-discovery has largely been driven by a handful of federal judges who realized early on [that] electronic evidence was going to be a big issue in their courtrooms,? she says. ?Fortunately, some of them have tackled it aggressively and have given guidance to a lot of other courts and judges.?

When new amendments to the Federal Rules of Civil Procedure for handling electronically stored information went into effect on Dec. 1, 2007, dis­covery was supposed to become easier to manage. Before the new rules were put in place, it was left up to judges to rule on how to handle digital evidence in court?a problem so thorny it often took hundreds of pages in opinions to sort it out.

But even with the new rules, many massive opinions continue to be written on the e-discovery issue. And jurists like Waxse [Magis­trate Judge David J. Waxse of the U.S. District Court in Kansas], whom Mack describes as one of the more colorful judges around, are gathering an intense following.

...Facciola [Magistrate Judge John M. Facciola with the U.S. District Court in Washington, D.C.] delved into one of the thorniest problems of e-discovery?how a court should consider the search terms and technology used to find electronic records. He called it ?a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics.? Facciola argued that electronic discovery is now too technical and complex for attorneys to assess adequately, and that experts may be necessary to determine whether an e-discovery search is adequate.

Read the full article here.