eDiscovery Daily Blog

Are You as “E-Savvy” as You Need to Be in Your “E-Disclosure” Process?: eDiscovery Best Practices

Craig Ball’s Ball in Your Court blog is always an excellent read, even when he writes it “across the pond” over in London. His latest post discusses how “fighting the last war” will eventually cost you when you come across an “e-savvy” opponent.

In Craig’s post, Girding for the E-Savvy Opponent, he mentions that he is presenting the keynote topic opening the Information Governance & eDiscovery Summit conference in London and how, while he was there, they were celebrating the 70th anniversary of VE day. I’ve heard him say before that “Generals are always prepared to fight the last war”, which he analogizes to technology and “e-disclosure” (which is what they call eDiscovery across the pond). Imagine if we were still trying use mounted cavalry to fight against armored tanks? It would be a disaster. As he notes, “In e-disclosure, we still fight the last war, smug in the belief that our opponents will never be e-savvy enough to defeat us.”

Craig notes that “Our old war ways have served so long that we are slow to recognize a growing vulnerability. To date, our opponents have proved unsophisticated, uncreative and un-tenacious.” He observes how our tech-challenged opponents “make it easy” and that he has “more than once heard an opponent defend costly, cumbersome procedures that produce what I didn’t seek and didn’t want with the irrefutable justification of, ‘we did what we always do.’”

But, that won’t always be the case. Craig predicts that “our once tech challenged opponents will someday evolve into Juris Doctor Electronicus.” When those tech challenged opponents evolve into e-savvy opponents, you can expect that they will (among other things): “demand competent search”, “insist on native production”, “compel transparency of scope and process”, “shrewdly use sampling to expose failure” and “demand competence, but not overreach”. With regard to that last point, Craig observes that “E-savvy counsel succeeds not by overreaching but by insisting on mere competence – competent scope, competent processes and competent forms of production. Good, not just good enough.”

Defenses against the e-savvy lawyer may include “the Luddite judge who applies the standards of his or her former law practice to modern evidence” or a strategy “to embed outmoded practices in the rules and to immunize incompetence against sanctions”. But, those won’t work forever. With virtually all evidence today “born electronically”, best practices for handling such evidence cannot be ignored forever. Someday, you will have to face e-savvy opponents on a regular basis, will you be ready?

As usual, Craig has numerous insightful observations in his post, I’ve referenced several of them here, but don’t want to fully steal his thunder, so I recommend you check out his post here.

So, what do you think? Is your organization still “fighting the last war” or are they prepared to deal with an “e-savvy” opponent? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.