Will Lawyers Ever Embrace Technology In eDiscovery?

February 13 2019 | Committees

 

Will Lawyers Ever Embrace Technology In eDiscovery? 

Law firms today possess technology tools which have been proven to save time and money while simultaneously improving quality within the discovery process. Two thirds of the states have enacted rules which impose lawyer’s ethical duty to understand technology. And case after case shows judicial endorsement of both of these concepts.

Why is it, then, that surveys continue to show that many lawyers have yet to embrace these new technologies and approaches? A survey by legal commentator Ari Kaplan revealed that many lawyers are still not sufficiently up to date with legal tech to make informed decisions about where to focus their firm’s resources and staff’s attention.  https://www.artificiallawyer.com/2018/07/20/us-survey-finds-big-legal-tech-knowledge-gap-among-lawyers/.

Several years ago, the results of the ILTA Law Department Survey reported a degree of technology usage that Ron Friedmann, in reporting on the survey, described as both “shocking” and “frightening”.  The survey released in Dec. of 2017 still showed problems, with 50% of the respondents using Windows 7 on their desktops and only 40% using a cloud-based email system. 

Have these technological delays impacted law firms relationships with clients?  The 2018 Zapproved Corporate Ediscovery Benchmarking Report https://www.corporateediscovery.com/2018-corporate-ediscovery-benchmarking-survey-reveals-gap-between-in-house-legal-priorities-and-practices ) found that “... corporate legal departments prioritize streamlining and modernizing operations as a top priority...” . And are outside counsel meeting this standard?  Not according to the EDRM/Exterro 2018 In-House Legal Benchmarking Report (https://www.exterro.com/2018-in-house-legal-benchmarking-report/ ) which found that almost 70% of legal teams conducted the majority of their litigation services in-house compared to 50% the year before.

Why is this? As long ago as 2009, Judge John Facciola said in a keynote address at LegalTech New York that “...attorneys are lacking in technology skills not from ignorance but stubbornness.” He elaborated that they simply aren’t taking the time to learn the basics of handling electronic data and as a result, they don’t really know what is important and what is just marketing fluff.

Has that changed in the past 10 years? When I asked that question recently of a currently sitting Federal court judge, he replied, “marginally” although a just released Exterro survey of Federal judges says that they feel half of the attorneys who appear before them have an “adequate” knowledge of the subject.  Adequate. See a report on the survey at  https://www.exterro.com/2019-judges-survey-ediscovery/  

Let’s examine the situation a little more closely and ask several questions:

  1. Why is this even important
  2. How can we change it?
  3. What are some good resources, and
  4. What do we do going forward?
  1. WHY IS THIS IMPORTANT?
  1. What Is the Goal of Ediscovery?

FRCP 1 makes the immediate goal of ediscovery quite clear.

Rule 1. Scope and Purpose 

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. (my emphasis added)

In that vein, Ron Friedmann once wrote a thought provoking post entitled  E-Discovery Goal: Win or Avoid Disaster?  in which he posed the theory that lawyers have forgotten the real goals of e-discovery, which he said were:

  1. Achieve the best outcome for the client
  2. Minimize cost
  3. Learn the facts of the case
  4. Prepare offense or defense
  5. Fulfill obligations to produce documents
     
  6.  What we do is important

But in addition to a legal and ethical obligation to perform efficiently, what we do in our work is important. I once spoke on a CLE panel with well-known ESI commentator Michael Arkfeld and he remarked that these are exciting times because for the first time we are seeing a true intersection of technology and the law.

But a speech I gave with Mary Mack, the CEO of ACEDS, was one that I remember because at the end of it, we were asked by an audience member “why should I go to law school’? My response was “Because what we do is important’!

Consider the US Judicial System for a moment. Modern human civilization has been in existence for roughly 44,000 years: Greek democracy began in 500 BC, the Magna Carta was signed in 1215 AD, the Enlightenment flourished from 1660-1780 AD with perhaps it’s crowning achievement, the American Revolution, occurring in 1776.

But our system of justice began with a document that says, “we the people”.  It depends on confidence by the people that they system is working. Yet while 70%% of poor households have a legal problem in any given year, only 4% consult a lawyer. 60% of middle classes with a legal problem don’t consult a lawyer because of cost.  

A 2014 Gallup poll showed more people had confidence in our military than the criminal justice system.


But a more recent (2017) State of State Courts report by the National Center for State Courts in Williamsburg VA, https://www.ncsc.org/2017survey, found that 71% of respondents had overall confidence in their court system although an equal number felt the courts were too complicated to navigate without an attorney.
 


Those statistics have remained fairly constant for over a decade and I would suggest that understanding what we are doing in the increasingly technical world of eDiscovery is crucial to keeping that confidence level intact.
 

 

c. Are We Stuck?

Attorney and eDiscovery expert Ralph Losey, https://e-discoveryteam.com/ , once called the lack of technical understanding by attorneys as a “paper prison”. Ken Withers, Deputy Executive Director of The Sedona Conference, said something similar once as a keynote speaker Georgetown University 5th Annual Advanced E-Discovery Institute Program, when he stated too many attorneys think in the old paper based paradigm instead of progressing to become what he called the “protodigital lawyer.”

So how do we change? How do we escape the paper prison?
 

  1.   WHAT TO DO TO CHANGE THINGS
  1. Technical Competence

First let’s acknowledge that we have an ethical obligation to be technically competent. Perhaps we always did. As one of my good friends in the Louisiana Bar Association pointed out to me when I asked why the LSBA hadn’t produced a specific rule for such a duty, “well we always just assumed it was just part of the general duty of competence. We didn’t issue that sort of rule when the telephone came out, or the fax machine, or the telegraph or the car. We figured the benefits of technology were both necessary AND apparent.”

And certainly at least one judge has felt this way for quite some time. In  Mancia v. Mayflower Textile Services Co., Judge Paul Grimm used a detailed examination of Rule 26(g), Fed. R. Civ. P., which requires every discovery disclosure, request, response or objection be signed by an attorney of record. The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the request is reasonable and the disclosure is complete and correct. In Judge Grimm’s opinion, he calls Rule 26(g) is “the least understood or followed of the discovery rules.” and he clearly states that much of the blame for high priced e-discovery costs lies here. Not following a clearly defined ethical duty. Or as I once wrote, hey shankapotamous, read the rule book.

https://docnativeblog.wordpress.com/2010/02/24/hey-shankapotamous-read-the-rule-book/

But even so, in 2012 the ABA issued a model rule on the issue in it’s Model Rules of Professional Conduct and so far 30 states have adopted a similar rule. You can read more about that on Bob Ambrogi’s site at https://www.lawsitesblog.com/2018/03/make-30-states-another-adopts-ethical-duty-technology-competence.html.
 

        b. Education

So what do we do to gain technical competence. How do we become what Craig Ball has called Homo Electronicus?

Certainly we can do so, right? We’re lawyers. We’re smart. We can do things.

Well not if law schools have anything to say about it. The late Browning Marean of DLA Piper and I spent years trying to begin a law school curriculum that included computer education with no success. Why? Because legal education still has its own old paradigm. The one that working with a keyboard is not “professional” and is best done by support staff and hourly employees. You know, secretary types.

We were actually told by the dean of one leading law school when we spoke to him about a legal technology training initiative, “We train architects, not carpenters.”

Great attitude Dean. You might want to tell those architects that they don’t have to use slide rules any longer.

And that’s the second part of the problem. Even with schools that have begrudgingly started eDiscovery courses. (And the number of those being taught by full time faculty as part of the standard curriculum can be counted on ... ok, two hands) But the threshold question here is not knowledge of e-discovery technology, it’s the lack of the most basic computer technical knowledge.

 Because where many people commenting on this subject see it as a parable for why we should be using concept searching in e-discovery matters I see it just another example of attorneys caught in the old paradigm of working with paper documents and being totally unaware of the most basic technical concepts. Law students need a good case book on eDiscovery, sure but first they need a discussion about technology in general. Some commentators say this isn’t really necessary because the new generation is computer savvy. Well maybe.  If by tech savvy you mean they can check email and do legal research. But even if they are tech savvy, they  are still the new generation. What about the NOW generation?  

What can we do about it?  Judge Facciola once suggested some form of national technology competency standards. Seem like fanciful speculation? Well, remember that all bankruptcy practitioners must take a 2 hour course in the ECF system before they can file documents because electronic filing of documents is required in all bankruptcy courts. Why then could courts not institute a similar requirement before they allow an attorney to file a motion involving e-discovery? 

Some Judges have indeed adopted local rules to that effect but the lack of action by law schools and bar associations is the real failing here. Heck, if an eDiscovery question started appearing on bar exams, you be darn sure law schools would start teaching it.
 

     3. RESOURCES

Craig Ball once made a great point in responding to a post of mine  about educating lawyers when he said  “We not only need to persuade lawyers to take the plunge, we need to insure there’s a pool for them to jump into. By that I mean, there just isn’t a clear path to accessible resources for the lawyer who wants to get a handle on the technology. Do they go to a community night course on computers? Pursue online education? Wait for the next Georgetown Academy?  I don’t think I’ve even seen a really good reading list on the topic (and much as I’d like for it to be, consuming the offerings on my web site isn’t enough).“

Browning Marean replied that there is no general technology educational resource for attorneys and it is unlikely that there ever will be, first because the field is constantly changing and no clear standards have yet to emerge and second because of the reluctance of traditional legal educational institutions to undertake any form of “vocational” training as we discussed above. He felt the only clear option is a constant monitoring of ED websites. Among his  favorites were AlltopRalph Loseys site and the EDRM  web page.  To that list I’d add Ediscovery Daily,  ACEDS and of course Ball In Your Court.

Beyond that, I’d also suggest the following books which are worth consulting as well:

A Process of Illumination:  The Practical Guide To Electronic Discovery, Mary Mack (available on Amazon)

The Discovery Revolution, George Paul and Bruce H. Nearon ,ABA

eDiscovery for Everyone, Ralph Losey, Amazon

Electronic Discovery and Evidence, 4th Edition, Michael Arkfeld Law Partner Publishing/LexisNexis

Managing E-Discovery and ESI: From Pre-Litigation to Trial 1st Edition,  Berman, Ingraffia & Grimm ABA Press

Project Management in Electronic Discovery: An Introduction to Core Principles of Legal Project Management and Leadership In eDiscovery, Michael Quartararo , Amazon

Electronic Discovery and Digital Evidence in a Nutshell, Shira Scheindlin, West Academic Press

Ediscovery for Small Cases, Olson & O’Connor, ABA

  4.  WHAT TO DO

What is the solution moving forward?? Well as I said above, “read the rule book shankapotomous.”. Get educated. Go to conferences and CLE sessions. Help promote more education.  Once again Craig Ball is more eloquent than I am when he ventures “Evidence is digital.  That’s not changing.  Embrace the inevitable.  We don’t need conferences to mourn the passing of paper.  We need Manhattan Projects to educate lawyers about ESI.”

And so we return to a recurrent theme among ED commentators. We need not just better but far more education.  That is the best way to reduce ED costs.

But I’ll also offer my 10 Tips for Working with EDiscovery. This may be a good checklist for you in moving forward.

  1. Read the Rules:  The Federal Rules of Civil Procedure lay out the framework for your obligations in handling e-discovery and differ in several aspects from traditional discovery rules.  In addition, your state may have it’s own ED rules which differ from the FRCP.  You need to understand the procedural requirements for the various jurisdictions where you may have litigation arise so start here.
  2. Read the Decisions: Federal judges, notably Facciola, Peck, Francis, Grimm and Waxse, have spent considerable time issuing opinions which give details on interpreting and implementing the Federal rules. Reading these decisions is essential to understanding how to handle e-discovery so start with a good book on ED basic then read a good case update blog, preferably one which has an RSS feed.
  3. Know the Terms: E-discovery isn’t rocket science but it is technical in nature.  But you learned the Rule against Perpetuities in law school so believe me you can handle this.  Judges do not want to waste time settling arguments between attorneys who don’t know the difference between a PST and an MSG file so get a good ED glossary (the Sedona Conference has one) and make sure you know all the terms.
  4. Know Where Your Data Is: You can’t find it to identify, collect and preserve if you don’t know where it is.  So get with your clients IT folks and make a map of their network with locations, custodians, OS and applications lists and descriptions of data amounts.  Why? Because a map shows us how to go places we haven’t been before without getting lost.  Plus they are incredibly useful in court to show a judge the complexity of your data collection problem.
  5. Talk to The IT department:  They know how to make the map. You’re Lewis and Clark, they’re Sacajawea. You cannot …absolutely cannot … navigate without them.
  6. Talk to The Records Management people:  Records Management is the flip side of the e-discovery coin and your clients RM staff can help avoid the need to waste time and money restoring backup tapes that don’t contain relevant data.  Wait, your client DOES have a Records Management Policy right? 
  7. Make a Records Management Policy: Good records management will save time and money when clients have to collect data and will help avoid sanctions when you have to explain to a judge why some documents are no longer available because they were deleted in the ordinary course of business by the records retention policy. 
  8. Make A Litigation Hold Policy:  Every client needs to have a clear and concise litigation hold policy to deal with procedures for data retention when the litigation hold letter arrives. And it will.
  9. Enforce the Litigation Hold Policy.  Repeat after me: “repeatable, defensible process”. Don’t put the lit hold policy in a manual that just goes on the shelf. This is the biggest mistake you can make and more cases are lost here than in any other phase of electronic discovery. Your opponent marks up a motion for sanctions, you say “but Your Honor, we have a lit hold policy” and the judge says “show me how you implemented it in this case.”  And you can’t.
  10. Meet with Your Clients Inside Counsel:  Why? To discuss all of the above. They will need to understand, and be able to explain, all of it in order to work with you.  And you need to be sure they can do exactly that.

    Finally. let me leave you with a word of caution. As much as we talk about technology and its importance, keep in mind that technical understanding is the underpinning of legal competence.  EDiscovery is still discovery.

The ultimate solution to the ediscovery quandary is more than just knowing the rules, avoiding e-jargon and understanding the technology. The fact is that ediscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage. In my estimation, true technical competence means knowing the technological underpinnings of each of those steps and then understanding the best process for making them all work together.

It is the process not the technology that is the ultimate key. As my colleague John Martin has said for years, “it’s the archer not the arrow”.

 

Written By: Tom O'Connor, Gulf Coast Legal Technology Center
E-Discovery Committee Chair



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