eDiscovery Trends: Same Old Story, Lawyers Struggling to “Get” eDiscovery
August 12, 2011
A couple of days ago, Law Technology News (LTN) published an article entitled Lawyers Struggle to Get a Grasp on E-Discovery, by Gina Passarella, via The Legal Intelligencer. Noting that “[a]ttorneys have said e-discovery can eat up between 50 to 80 percent of a litigation budget”, the article had several good observations and quotes from various eDiscovery thought leaders, including:
- Cozen O'Connor member David J. Walton, co-chairman of the firm's eDiscovery task force, who observed that “I'm afraid not to know [eDiscovery] because it dominates every part of a case”;
- LDiscovery General Counsel Leonard Deutchman, who noted that the younger generation comfortable with the technology will soon be the judges and attorneys handling these matters, asked the question “what happens to those people that never change?”. His answer: “They die.”
- K&L Gates eDiscovery analysis and technology group Co-Chairman Thomas J. Smith noted that “A lot of the costs in e-discovery are driven by paranoia because counsel or the party themselves don't really know the rules and don't know what the case law says”.
- Morgan Lewis & Bockius partner Stephanie A. "Tess" Blair heads up the firm's e-data practice and hopes that in five years eDiscovery will become more routine, noting “I think we're at the end of the beginning”.
- Dechert's e-discovery practice guru Ben Barnett said, “Technology created the problem, so technology needs to solve it.” But, David Cohen, the head of Reed Smith's eDiscovery practice, said that the increasing amount of data sources are keeping ahead of that process, saying “You have to make improvements in how you handle it just to tread water in terms of cost”.
There are several other good quotes and observations in the article, linked above.
On the heels of Jason Krause’s two part series on this blog regarding the various eDiscovery standards organizations, and the controversy regarding eDiscovery certification programs (referenced by this post regarding the certification program at The Organization of Legal Professionals), where do attorneys turn for information? How do attorneys meet the competency requirements that the American Bar Association (ABA) Model Rules set forth, when an understanding of eDiscovery has become an increasing part of those requirements?
One common denominator of the firms quoted above is that they all have one or more individuals focused on managing the eDiscovery aspect of the cases in which they’re involved. Having an eDiscovery specialist (or a team) can be a key component of effectively managing the discovery process. If you’re a smaller firm and cannot devote a resource to managing eDiscovery, then find a competent provider that can assist when needed.
In addition to identifying an “expert” within or outside the firm, there are so many resources available for self-education that any attorney can investigate to boost their own eDiscovery “savvy”. Join one of the standards organizations referenced in the two part series above. Or, participate in a certification program.
One method for self-education that attorneys already know is case law research – while there is always variety in how some of the issues are handled by different courts, case decisions related to eDiscovery can certainly identify risks and issues that may need to be addressed or mitigated. Subscribing to one or more resources that publish eDiscovery case law is a great way to keep abreast of developments. And, I would be remiss if I didn’t note that eDiscovery Daily is one of those resources – in the nearly 11 month history of this blog, we have published 43 case law posts to date. More to come, I’m sure… ;-)
So, what do you think? Do you have a game plan for “getting” eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.