As the eDiscovery trade matures and more events draw national attendance, Georgetown Law’s Advanced eDiscovery Institute is still top of the pack in its 11th year. This year’s Institute (November 20-21) was a packed house of 600 ediscovery nerds, gathering to listen to leaders in the field speak on panels, tease each other with in-jokes about Technology Assisted Review, collect pens and chargers from the sponsor tables and get CLE credit. The judges most knowledgeable in the field are almost always there. This year featured a special address from retiring U.S. Magistrate Judge John Facciola, who got a standing ovation when he started and when he finished. I’m going to do brief write ups on several of the panels over the next couple of days, but the overarching theme for me, as it was at the Sedona Conference meeting a couple of weeks ago, is the extent to which the capabilities and social role of technology are outstripping the law. A recent New York opinion on social media pointed out that Thomas Jefferson and other Founders would almost certainly have tweeted. They partook in the public discourse of their own day with vigor. But even still lawyers and judges have to stretch applying legal reasoning from 1789 to Big Data, GoogleGlass and Facebook. It’s like yoga for the legal mind: you can get there if you try, but it feels wrong, even if it’s ultimately good for you.

Hon. John Facciola (image credit Ralph Losey)

This year’s panels included an overview of recent cases on social media production, discussion of warrants and mobile devices, in-house strategies for managing the economic process of high volume ediscovery (always one of my favorites), a lot of discussion of Big Data and the obligatory overview of the revisions to the Federal Rules of Civil Procedure. Just about every panel included a sense of speed and digital change, swamping the most analog of professions. (To be honest, law isn’t even analog). Speakers seemed game, but a little bit dazzled in the face of fitbit data, dense layers of social media metadata and fingerprint locked phones.

Socrates

So far the judiciary and the legal profession seem generally comfortable that we will be able to handle new forms and volumes of data that were only possible in speculative fiction when we started practicing. (I’m talking when I started practicing. I’m not even sure that there was the capacity to speculate about some of the things we have today when Judge Facciola started practicing). A contract is still a contract, a tort is still a tort, relevance is still relevance. The incapacitating expense of litigation and the challenge that poses to the integrity of the judicial system is growing. But that isn’t a factor of technology. It’s part of the 1%-ization of our entire economy and society. So while Judge Facciola played out a dialogue between Socrates and himself about the morality and efficacy of the adversary system, that’s the question that’s always with us. It remains to be seen whether the adversary system’s flaws – incentives to hide evidence and fight over minutiae – get worse with expanding technical complexity, or exist independently of it.