eDiscovery Daily Blog

• November 27, 2018

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published on November 16, part two was published last Monday, part three was published last Tuesday and part four was published yesterday.  Here’s the fifth and final part.

What can we do to Help Lawyers become Technologically Proficient?

What is the solution moving forward?? Well as I said above, “read the rule book shankapotomous.”. Get educated. Go to conferences and CLE sessions. Help promote more education.  Once again Craig Ball is more eloquent than I am when he ventures “Evidence is digital.  That’s not changing.  Embrace the inevitable.  We don’t need conferences to mourn the passing of paper.  We need Manhattan Projects to educate lawyers about ESI.”

And, so we return to a recurrent theme among ED commentators. We need not just better but far more education.  That is the best way to reduce ED costs.

But I’ll also offer my 10 Tips for Working with eDiscovery. This may be a good checklist for you in moving forward.

1. Read the Rules: The Federal Rules of Civil Procedure lay out the framework for your obligations in handling e-discovery and differ in several aspects from traditional discovery rules. In addition, your state may have its own ED rules which differ from the FRCP.  You need to understand the procedural requirements for the various jurisdictions where you may have litigation arise so start here.
2. Read the Decisions: Federal judges, notably Facciola, Grimm and Waxse, have spent considerable time issuing opinions which give details on interpreting and implementing the Federal rules. Reading these decisions is essential to understanding how to handle eDiscovery so start with a good book on ED basic then read a good case update blog, preferably one which has an RSS feed.
3. Know the Terms: eDiscovery isn’t rocket science but it is technical in nature. But you learned the Rule against Perpetuities in law school so believe me you can handle this.  Judges do not want to waste time settling arguments between attorneys who don’t know the difference between a PST and an MSG file so get a good ED glossary (the Sedona Conference has one) and make sure you know all the terms.
4. Know Where Your Data Is: You can’t find it to identify, collect and preserve if you don’t know where it is. So, get with your client’s IT folks and make a map of their network with locations, custodians, OS and applications lists and descriptions of data amounts.  Why? Because a map shows us how to go places that we haven’t been before without getting lost.  Plus, they are incredibly useful in court to show a judge the complexity of your data collection problem.
5. Talk to The IT Department: They know how to make the map. You’re Lewis and Clark, they’re Sacajawea. You cannot…absolutely cannot…navigate without them.
6. Talk to The Records Management People: Records Management is the flip side of the eDiscovery coin and your clients RM staff can help avoid the need to waste time and money restoring backup tapes that don’t contain relevant data. Wait, your client DOES have a Records Management Policy, right?
7. Make a Records Management Policy: Good records management will save time and money when clients have to collect data and will help avoid sanctions when you have to explain to a judge why some documents are no longer available because they were deleted in the ordinary course of business by the records retention policy.
8. Make A Litigation Hold Policy: Every client needs to have a clear and concise litigation hold policy to deal with procedures for data retention when the litigation hold letter arrives. And it will.
9. Enforce the Litigation Hold Policy: Repeat after me: “repeatable, defensible process”. Don’t put the lit hold policy in a manual that just goes on the shelf. This is the biggest mistake you can make and more cases are lost here than in any other phase of electronic discovery. Your opponent marks up a motion for sanctions, you say “but Your Honor, we have a lit hold policy” and the judge says “show me how you implemented it in this case.” And you can’t.
10. Meet with Your Client’s Inside Counsel: Why? To discuss all of the above. They will need to understand, and be able to explain, all of it in order to work with you. And you need to be sure they can do exactly that.

Finally. let me leave you with a word of caution. As much as we talk about technology and its importance, keep in mind that technical understanding is the underpinning of legal competence.  eDiscovery is still discovery.

The ultimate solution to the eDiscovery quandary is more than just knowing the rules, avoiding e-jargon and understanding the technology. The fact is that eDiscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage. In my estimation, true technical competence means knowing the technological underpinnings of each of those steps and then understanding the best process for making them all work together.

It is the process not the technology that is the ultimate key. As my colleague John Martin has said for years, “it’s the archer not the arrow”.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.