Lawyers are frequently confused about the term "electronic discovery." It's no wonder, since lawyers and electronic-discovery vendors often use the terms in distinctly different ways.
The terms "electronic discovery" can have either of the following two meanings:
A set of rules and procedures designed to locate admissible evidence from facts created and stored in electronic format. This set of rules and procedures almost always overlaps with the rules and procedures lawyers use to find information stored in paper format; and,
The process of uncovering, collecting, searching, and manipulating information created and stored in electronic format in attempt to locate admissible evidence.
When litigators say "electronic discovery," they are often giving the term the first meaning. Litigators are most often concerned about the procedures used to compel the other side to turn over electronic data in the first place. When electronic-discovery vendors say it, they are often using the second meaning. Electronic-discovery vendors are most often concerned about making use of electronic data once it's already in the requesting lawyer's possession.
In discussions of electronic discovery, the participants often fail to clearly define which of the meanings they are giving the term. By becoming aware of the distinction, you will be more likely to understand discussions about electronic discovery.
Why do some judges and lawyers feel compelled to unnecessarily use Latin words when they write? Though some Latin words have becomes terms of art for which there is no good English substitute--prima facie, for examples, or habeas corpus--an English equivalent should be used if one exists.
Inter alia? Write "among others." Ex abundanti cautela? Write "out of abundant caution." In praesenti? Write "in the present."
There are a thousand such examples, and each makes the point: Latin words get in the way of comprehension and make the writer look like a jerk. That's why all right-thinking judges and lawyers should shun the unnecessary use of Latin in legal writing--except in those circumstances, of course, when a wannabe blog author is searching for a clever weblogtitle.
Concluding note: This post was written after encountering yet another unnecessary Latin word in a recent judicial opinion. Some of the examples used in this post are from Garner's entry on "Latinisms" in A Dictionary of Modern Legal Usage.
Though it might not be obvious to ordinary citizens who watch TV shows about lawyers like NBC’s The Law Firm, lawyers rarely know the answers to thorny legal issues off the top of their heads. Instead, they have to look up the answers. Or, more often, they turn to the lawyer standing next to them and ask, for example, “Hey, do you know how I can require an Arkansas resident to appear for a deposition in a case pending in California?”
Because new associates, by their nature, do a lot of standing around, it’s often new associates who are asked questions like these by more experienced lawyers. Here’s my tip to these new associates: If you don’t know the answer, admit it. Are you afraid that you’ll be penalized if you take this course? It’s not likely. After all, the lawyer who’s asking you the question doesn’t know the answer either.
After you say "I don't know," you should offer to find out the answer. In my own career, I’ve said “I don’t know” a thousand times, and I’m none the worse for it. Consider the alternative. Many young lawyers in the situation I’m describing feel compelled to make something up—to “wing it,” in the vernacular. I’ll tell you what will happen. First, they’ll look like idiots, either when they first open their mouths or later, when the lawyers on the receiving end of the communication learn they were wrong. Second, the lawyers who asked the question will never ask these new associates another one. Instead, they’ll move on to other associates they can trust.
If all this is too much to remember, simply keep in mind the immortal words of Mark Twain: “It’s better to keep your mouth shut and let people think you are a fool than to open your mouth and remove all doubt.”