Eternal September

As we mark the 233rd anniversary of our nation's founding with fireworks, Sousa marches and cookouts, I'm quietly looking back a scant thirty years, to the birth of USENET, and marveling at how far that once-great network has fallen.  Oddly, USENET figures prominently in an interesting new e-discovery sanctions decision.

Gather round, kids, and let L'Éminence Grise regale you with tales of yore, long before the Web, when dial-up bulletin boards were the bleeding edge and USENET messaging was bitchin'.  You iPod-addled whippersnappers with your forae, blogs and tweets think it's all so new.  In my day, we had to rise early and trudge through the snow to stack our TCP/IP...what's that...you don't care how pioneers poured the foundation for electronic expression and fashioned Perez Hilton from a lump of clay and a dash of silicon?

I don't blame you a bit.  USENET is over, and its last vestige--the lawless "alt. for alternative" segment that now accounts for 99% of its traffic by volume--just got pummeled in a case from the Southern District of New York called Arista Records LLC v. Usenet.com, Inc., 2009 WL 1873589 (S.D.N.Y.).  The case breaks no new ground, but exemplifies the egregious discovery abuse I often see in my peculiar practice.  The spoiled scions of the music industry aren't appealing plaintiffs, but they didn't deserve the gross abuses the defendants dished out.  I marvel with sadness at how some parties and counsel will strive so to pervert justice.

"Eternal September" harkens to Septembers of the late 1980s and early 1990s, when entering college freshmen gained access to USENET.  It took those newbies time to learn netiquette, such that Septembers were characterized by rudeness and rookie mistakes until the newbies learned the ropes.  When, in 1993, America Online added USENET to its offerings, the influx of the ignorant and ill-tempered lost its seasonal character and an "Eternal September" decended upon USENET. 

Perhaps we are in an Eternal September phase for e-discovery.  Lawyers and clients unschooled in--or simply contemptuous of--the culture of clarity and cooperation essential to cost-effective EDD are flooding in.  Like the AOL newbies, they can't be bothered to learn the systems or adapt to new challenges and mores.  Instead, they bluster and bully and rage that it's too hard.  They behave as though rules of decency and character don't apply to the digital realm.  It can really shake your faith.

But then, a restrained, cautious jurist like Judge Baer steps up and says, "Enough!" and it reminds you that the system is bent but not broken, and that many still care deeply about candor and evidence and truth.  So, Happy Birthday USA!   Thanks to our troops abroad, and thanks to other unsung heroes: the many underpaid, patient judges who guard our liberties here at home.