eDiscovery Daily Blog

• February 29, 2012

This is the seventh (and final) of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
3. What are your general observations about LTNY this year and how it fits into emerging trends?
4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 750 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and he writes a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court, as well as blogs on those topics at ballinyourcourt.com. 

Our interview with Craig had so much good information in it, we couldn’t fit it all into a single post.  So, today is part one.  Part two will be published in the blog tomorrow!

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?

Well, I see several things happening.  I'm gratified that people are starting to become more resigned to the obligation to pursue eDiscovery.  I think we're seeing some better practices, particularly with respect to preservation.

The preservation message is hitting home.  Whether it’s a function of the outsize fear factor prompted by sanctions decisions or whether lawyers and businesses are becoming better informed by virtue of education and dialogue like that here at LegalTech is hard to say.  Regardless, I think the message is starting to seep through that there are  things you must do early on to identify electronically stored information and be sure that it's properly preserved.

As I walk around the show and listen to the programs, I'm amazed by all discussion of Technology Assisted Review or TAR—maybe the worst acronym that industry’s come up with since ECA.  But, they didn't choose Super Human Information Technology, so I guess we should be thankful for small blessings.  I'm sure we'll soon an article mentioning TAR and feathers.

Technology Assisted Review is the use of more sophisticated algorithms—math–and advanced analytic to take replace or supplement the individualized judgment of lawyers' respecting the responsiveness, non-responsiveness and privileged character of documents and data sets.  The notion behind TAR is that we don't need legions of young associates or contract lawyers in darkened rooms staring at screens; instead, the broad distinctions between what is most likely to be relevant and what is not will be handled robotically.  It’s floated as a more palatable, more affordable alternative to poorly-chosen key words thrown at massive data volumes–a more intelligent, more intuitive tool that does the job in a way that’s no worse than human beings, hopefully somewhat better, and in any case, for a lot less money.  That is the dream, and it’s coming closer to a reality..

But the realization out there is spotty.  Expectations are unrealistic and marketing is overheated, but we are seeing some enthusiasm amidst the skepticism.  And, I think that trend is certainly going to continue, at least as a marketing trend whether it continues as a successfully-integrated technology or not.  For the moment, it’s an option only for those with big budgets, not the rank and file firm.  No surprises there, as eDiscovery has yet to become a process lawyers know how to manage cost-effectively, But they will learn, in time.  Clients, courts and malpractice carriers will leave no option but to learn it.

Which trend(s), if any, haven’t emerged to this point like you thought they would?

Oh, that's an easy one.  That's education.  I am appalled at the dearth of high-caliber educational options available to lawyers in this crucial and very costly corner aspect of the practice.  E-discovery education is still afflicted by the scourge of the one-hour CLE.  You know, where some earnest person’s trotted out for 30, 45 minutes, maybe an hour of introduction to electronic discovery.  That continuing, repeated, cursory treatment of this challenging area is what’s supposed to make us confident and competent.  It doesn't even begin to scratch the surface.

Lawyers are still not learning enough about the information infrastructure of their clients.  They're picking up a few buzz words.  I’ll see it some meet-and-confers.  It's like watching a little kid use a curse word.  This sort of smile creeps across their face when they’ve managed to work the word “metadata” into the conversation.  As though using the term is a talisman–a substitute for actually knowing what they're talking about.

I don't mean to be so dismissive, but it's really gets almost that absurd sometimes.  We don't have enough education.  We don't have enough lawyers starting to get it.  Most channel their energy and ingenuity into look for reasons why they don’t need to know this stuff.  The handful that really do want to learn have precious few places to go short of self-instruction.  We need to change that.

We need a Manhattan Project in this country to help rescue the experienced lawyers and bring them up to speed.  We need a sort of reset, getting all trial lawyers talking about these topics in an intelligent, productive, and perhaps most importantly of all, cost-effective way.

Thanks, Craig, for participating in the interview!

To the readers, just a reminder to stay tuned for part two of our interview with Craig tomorrow!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!