An E-Discovery Day Interview with Judge Andrew Peck (ret.)

Judge Andrew Peck (Ret.) Opines on E-Discovery Day

This blog originally appeared 11/14/22 on EDRM's blog.

Since its inception in 2015, E-Discovery Day has grown significantly. Almost 20,000 people have participated in the last seven celebrations of the vital role e-discovery plays in the legal process. Exterro and its partners—comprising nearly 40 different organizations—have hosted 84 official webinars and over 50 official events. Beyond these, countless local gatherings and virtual events take place during the first week of December every year.

A lot has changed since the winter of 2019, when Exterro and partners hosted 16 live events across the country before moving almost exclusively online for two years. While e-discovery professionals are among the best equipped to work in virtual environments, there is still a great desire to gather in person to celebrate, network, and kick off the holiday season.

One constant over the last eight years has been the involvement of Hon. Andrew Peck (ret.), now Senior Counsel at DLA Piper. I reached out to him recently to discuss his participation in the celebration.

“I have been involved, either as a speaker or at least a listener, since the first E-Discovery Day. It’s hard to believe this is number eight. Time sure does fly,” he said. Judge Peck also acknowledged early influencers like the late Browning Marean, noting that joining DLA Piper was, in part, a tribute to him.

When asked why participation is important, he touched on the core mission: “One learns from others. Many of us face the same issues, and it’s good to hear how others deal with it.”

Insights from the E-Discovery Survey

We followed up with Judge Peck on some findings from our recent industry survey.

Q: Respondents said law firm attorneys were the hardest parties to work with on e-discovery. As someone who has served on both the bench and the bar, is it true?

“The answer, of course, is ‘It depends.’ Sometimes the client is the problem; sometimes it is the ‘dinosaur’ senior partner who wants to do e-discovery the way he learned discovery in the paper days. Eyes-on review for every document might be the gold standard for 1,000 documents, but not for a million. One should embrace technological advances, like TAR (Technology Assisted Review)."

"Sometimes the difficult person is opposing counsel who refuses to cooperate in hope of a ‘gotcha’ moment. And I hate to say it, but sometimes it can be a judge who doesn’t understand the technology and expects a million emails produced within 30 days.”

Q: Regarding Federal Rule of Evidence (FRE) 502, 38% of respondents chose "What's 502?" as their answer. Any thoughts?

“You get 502(b) automatically in federal court, but it subjects you to ‘Monday morning quarterbacking’ by the court on whether your privilege review was careful enough. To me, 502(d) is a no-brainer; it is your ‘get out of jail free’ card. I’ve said it is akin to malpractice not to consider getting a 502(d) order. No matter how good your process is, with the amount of ESI today, something will slip through. It is scary that more than a third of respondents said ‘What’s 502?’ That’s why I talk about it at almost every conference.”

Q: Two-thirds of people prefer "eDiscovery" over "e-discovery." What gives?

“I voted for 'discovery.' No ‘e’ is needed. Basically, almost all discovery is e-discovery. And no need for the hyphen in any event, as it’s one less character to type.”

Join the Celebration

To find out about this year’s live and virtual E-Discovery Day events, visit www.e-discoveryday.com. (Please don’t remove the hyphen or the “e” from the URL just yet!)

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