eDiscovery Daily Blog

• February 28, 2012

This is the sixth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year.

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Partner and the firm's National e-Discovery Counsel. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery. Ralph is also a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world.

Our interview with Ralph had so much good information in it, we couldn’t fit it all into a single post.  Yesterday was part 1.  Here's the rest of the interview!

Are there any other key trends you see?  Is there anything else interesting in terms of the trends you see here at LegalTech, at least as far as the curriculum goes?

[Interviewed the first morning, before the show began]  In all candor, the show hasn't begun yet, so I haven't seen anything.  I'm doing four presentations on predictive coding and one with Craig Ball, which I'm looking forward to.  I hope I don't suffer too bad of a public humiliation by Master Ball. 

But, you know, the keynote speech that's getting ready to start is on ethics, and I see a lot of ethics in the curriculum.  I'm pleased by that.  I do lecture a lot on eDiscovery ethics, and I think it comes down to fundamentally what we are doing with discovery.  Are we, as legal practitioners, willing to stop playing “hide the ball”, stop all this nonsense and waste of money, and get down to actually finding the key facts and getting them out there quickly?  That's always been my attitude, but I was lucky – I was brought up in a firm that really put ethics first and money second.  But, there are a lot of people out there for which money's first, and ethics is a gray area.

Ethics is not a gray area.  We're supposed to try and get the case resolved and save money for our clients.  That's rule one.  Just do it speedy and inexpensively.  A lot of lawyers, say, “yeah, right” and that's how they make a living.  Well, shame on them.

You don’t make a living by exploiting your clients.  You make a living by winning cases, and sometimes the best way to win a case is to settle it when you realize the facts are against you – not to try to change the facts or hide the facts.  So that's ethics.  Most clients want ethical lawyers like that.

What are you working on that you’d like our readers to know about?

I'm doing a lot of law firm training.  I do that internally and, since my current law firm specializes in labor and employment only, we're not really a competitor to most law firms.  So, we actually can offer a service to help train other law firms in eDiscovery.

I'm also now doing a lot of training for our corporate clients.  We represent Fortune 500 type companies, and it's important for those companies to be prepared for eDiscovery.  Now that we’re coming out of the recession, companies can spend the money needed to get ready for litigation and eDiscovery that they put off before, because of other priorities.  Companies are now saying “I want to finally get my e-mail retention policy in order.  I want to figure out how to get a litigation hold implemented in my company without causing all kinds of disruption and chaos and confusion and expense.”

It just takes preparation.  It takes time.  The fundamental way to do that is to set up your own internal team, eDiscovery team.  That's one of the main ideas that I've been talking about for six years now when I started my blog, e-Discovery Team®, is the joint approach of people working together.  Get the IT people, the law people and the management people working together as teams for – in this case – litigation readiness.

It can cost a fair amount of money to do it right.  But, if you spend $100,000 now to get ready and get your systems in order, you can save yourself millions later on and also save yourself the embarrassment of making a mistake, of being found out to be a spoliator.  There are plenty of examples where it makes sense to spend a little money up front to save more money down the road.  So, I want to encourage companies to think about that, whether they use me or somebody else.  There are a number of attorneys that provide those services, and it's money well spent.  Pay me a little bit now or pay me a lot later.

Ten years ago, when Cisco was probably the first company in the country to form their own eDiscovery team, it was after they faced hundreds of investor law suits.  They found that by forming their own eDiscovery team, they reduced their litigation expenses by 90 percent because most of their litigation expenses were related to eDiscovery.  While I'm not promising you'll save 90 percent like Cisco did, I am saying it's a well-established fact that spending a little money up front to prepare will help you save costs in the long run.

I'd also like point out to people the other program that I've developed, which I call eDiscovery team training.  And you'll also find that on the web, at e-Discovery Team Training.  I took what I had developed in law school in teaching eDiscovery to law students for the past three or four years, and I developed an online program with the University of Florida, School of Law.  With their permission, I developed my own private version of that, which is actually much longer and harder than what I taught to law students.  Law students had to take it in two months.

So, I've developed a program that built on that, which you can take up to two years to complete.  It's 75 hours of work to go through the training program and it's all online.  It has homework assignments at the end for additional reading and presents different essays, hypertext-type writings and videos.  It takes advantage of the power of online education, which I really think is more the future than these expensive, face-to-face education programs, like we have at LegalTech.

There are still a few events that I'll go to each year (like LegalTech and the Sedona Conference), and then I'll train inside corporations or in my own law firm.  The fact that most lawyers aren't doing eDiscovery is not because they're trying to do anything wrong or hide the truth.  They simply don't know how.  And if you teach them how to do it, they'll do it.  This is against a lot of vendors' models – they would rather serve a nice fish dinner.  I'm more into teaching people how to fish so that they can feed themselves, and that's what I go around trying to do.

Thanks, Ralph, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!