eDiscovery Daily Blog

If You’re Reading This, It Probably Doesn’t Apply to You: eDiscovery Best Practices

On the veritable eve of the annual Georgetown Law Center eDiscovery Training Academy (covered by us here), Craig Ball (who is in the midst of that very academy now) has asked the question Have We Lost the War on E-Discovery?  But, if you’re reading that (or this blog post), it probably doesn’t apply to you.

In Craig’s post from last Thursday, he notes that the idea that there is a war on eDiscovery “[s]ounds like a paranoid notion, but the evidence is everywhere.”  He observes that he is “flummoxed by how the tide has turned to anti-discovery topics”, such as proportionality, privacy, General Data Protection Regulation (GDPR) and cybersecurity.  He notes that “[t]hese are important topics” and that “[d]iscovery needs to be just, speedy and inexpensive”, but asks “why do we keep forgetting that there’s a comma in there?  Will we ever balance our self-interest in advancing our client’s wishes against our common interest in a justice system that serves everyone?”

Craig also notes that “Impractical, misplaced and mistimed topics like blockchain,” (oops, we did that in a blog series and webcast) “Dark Web and AI serve to eat up time that should be devoted to e-discovery topics about which lawyers still desperately need practical instruction.”  In asking you whether there is a war on eDiscovery, Craig also challenges you to “[l]ook at the agenda of any major e-discovery conference” and “[c]ount the hours devoted to practical e-discovery skills that support the finding and turning over of relevant evidence”, then “count the hours devoted to telling lawyers how to limit discovery, challenge discovery, assert proportionality, protect privacy, enforce data security, manage data breaches, delegate discovery to vendors, cut costs or cede their roles to robots.”

Craig, in referencing the “last round of e-discovery rules amendments”, also observes that requesting parties are not winning the war on eDiscovery and notes that “Corporations spent more money lobbying for the 2015 e-discovery rules changes than has ever been spent in support of procedural rules amendments since 1939.   Final score: Funders 1, Founders 0.”

Craig is not wrong about any of this.  He was one of the experts that discussed the challenges facing plaintiff’s attorneys in Tom O’Connor’s recent series on our blog.  There are a lot of challenges and we will touch on that tomorrow and later this month in our monthly webcast.

But, here’s the problem.  Most of the people who are in this predicament are probably not reading about this in Craig’s blog – or here.  They aren’t requesting those hours of instruction on practical eDiscovery skills.  They aren’t reading the blogs and other publications to learn more about what they should be doing (at least when we do cover those topics).

If they did, the webinars and blogs and conferences might just cover those topics more.  They cover what their viewers/readers/attendees are asking for.  And, it’s not usually the practical eDiscovery skills because many of the people who view the webinars, read the blogs and attend the conferences have learned about those already.  They are among the small percentage who have obtained that knowledge already and want to move onto newer topics that are more interesting to them.  It’s the rest of the people who haven’t.  And, unfortunately, they are the ones who are not reading Craig’s blog, or this one.

So, what do you think?  Do you want to see more practical eDiscovery skills covered on this blog?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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