LAWTECH GURU BLOG by Jeff Beard

Ralph Losey: Trial Lawyers Turn a Blind Eye to the True Cause of the E-Discovery Morass

Ralph Losey has a very thought-provoking analysis of the new Interim Report & 2008 Litigation Survey of the Fellows of the American College of Trial Lawyers. I recommend Ralph's post as it provides some welcome perspective.

Ralph covers a number of points in the interim report and survey, some of which he agrees with, but also points out what they missed. As Ralph summarized, the report is quick to place the blame on poorly drafted rules (which underwent a significant commenting, revision, and review process), e-discovery vendors, and even the judiciary. As he commented, no fingers point back to the trial lawyers themselves:

"I agree with the eminent trial lawyers and academics that conducted this study that our rules and law need reform, and our judges need to do a better job. But, in my opinion, the fundamental cause of the e-discovery problem is the failure of the legal profession, especially the trial bar, to keep up with the rapid changes in technology. That is why new rules and legislation alone will never fix the problem. Such reforms must be coupled with an aggressive attorney education program that starts in law school. Some law firms today are starting to awaken to this problem and set up internal training programs. So too are a few law schools. But the vast majority of our profession still refuses to own-up to the competency issue. They either ignore the problem of e-discovery all-together, like most academics, or they acknowledge the problem, like this report does, then blame anyone other than themselves." (sic)

Ralph raises a very important issue: Lawyer competence, education, and experience with technological and e-discovery matters. Ralph illustrated how a number of these distinguished trial lawyers hardly seem in touch with these issues:

"'Nearly 60% of Fellows reported having cases that raise electronic discovery issues.' (My Comment: this means that 40% of these distinguished Fellows have never had a case with electronic discovery issues! And yet, this same group, 87%, agree that electronic discovery is too costly.)"

Please note the comment above is Ralph's, not mine. I tend to be careful in not relying on bare statistics too much, but it is scary to contemplate that 40% of the responding Fellows have never had a case involving e-discovery, yet they are opining in a report on e-discovery.

Another tidbit from the survey:

"71% of Fellows say that the costs of outside vendors have increased the cost of ediscovery without commensurate value to the client"

All I'll say to that, in the immortal words of Red Adair: "If you think hiring an expert is expensive, try hiring an amateur." It's widely accepted and frequently quoted that the largest cost of e-discovery is the legal review. Which is usually performed by . . . (wait for it) . . . the legal team! Yes, fellow readers, there is an elephant in the room. Consider that most legal review is billed by the hour, a process which does not usually encourage efficiencies. So it's not the preservation, collection, or processing that's the most expensive component of e-discovery in most cases, but the lawyer review.

I also read the August 22nd Wall Street Journal article, "Tech Firms Pitch Tools For Sifting Legal Records," (subscription required) the day it came out. A main theme of the article was contained in the second page's heading, "Record-Sifting Software Meets Lawyers' Resistance." Again, trial lawyers being portrayed as avoiding technological solutions in e-discovery?

I was very tempted to blog about the WSJ article, as I took issue with the comment by Autonomy's chief executive regarding e-discovery work: "It is work that requires little brain-power or legal training." I'm inclined to infer from that quote that he hasn't gotten his hands dirty in too many (if any) e-discovery cases if he thinks that and was quoted properly. By the way, a number of other notable e-discovery and legal bloggers felt similarly about the article, including Ralph Losey, Carolyn Elefant, Ron Friedmann and Brett Burney. (Update: Read the comments at the end of Ralph Losey's post, where Mr. Lynch states he was indeed misquoted. Regardless, the gist of the WSJ article sparked a tremendous amount of negative feedback from the eDiscovery community.)

Regarding the use of new automated systems to aid in e-discovery, the WSJ reporter stated:

"But big law firms, facing the loss of lucrative client fees, are crying foul. They question how much of the e-discovery process can be automated and how much money the tools will really save."

Let's also examine where the vast collections of ESI come from, and about which the trial lawyers are complaining: From the litigants themselves, at least for the most part. Ralph describes them more colorfully as "disorganized pack-rats". Thus a key part of the "e-discovery morass" stems from the over-retention of the litigants' own data. An effective litigation and e-discovery readiness program includes the active (not passive) approach to appropriate electronic records and information management. If you want to save on the most expensive part of the e-discovery process -- the legal review -- then it makes sense to reduce the mountains of data to review. That's where the experts, consultants, and vendors add commensurate value. We know legal review is expensive, and part of the "eDiscovery 2.0" paradigm is to take a more savvy approach to how companies manage their data and especially in more efficient culling techniques. So until the companies themselves address their internal information management issues, relaxing the federal rules or their interpretation could end up as a band-aid used to cover the gaping wound.

As with many complex problems, there are multiple perspectives, approaches, and solutions. I respect that, but also tend to agree with Ralph's statement: "The College of Trial Lawyers is correct to see e-discovery as a real problem, even if they do not yet understand the full dynamics of the problem." He suggests adding two items to their plan:

1. Lawyers stepping out of their long shadow and recognizing that they are part of the problem, and that most are deficient in understanding the new technologies that drive today's world. (I'll add that you can't address a problem properly until you recognize that one actually exists.)
2. We need to address the problem with strong educational efforts in both the Bar and academic institutions.

Thus I really liked the last paragraph of his conclusion, and frankly I can't think of a better way to put it:

"Electronic discovery can be done in a cost effective manner, if you know how. The way out of this morass is learning, and the knowledge and wisdom that eventually comes with it. Study is required by everyone: lawyers, judges, paralegals, technicians, professors and law students alike. We all need to master technology, especially technologies related to electronic discovery. This in turns requires learning to work with Information Technology experts. The alternative is to turn back the clock to a paper world, turn off all of the damn computers and stop sending emails. I know many lawyers out there who might like that. But, since that is not likely to happen (your kids won't allow it), we need to start understanding all of these high-tech toys, at least well enough to find the evidence they generate and hold, and not break the bank in the process. It can and will be done, as soon as we accept responsibility for this problem ourselves, stop blaming it all on the rules and judges, roll up our sleeves and start learning how it all works."