eDiscovery Strategy: "Command" Model of eDiscovery Must Make Way for Collaboration
October 17, 2011
Last week’s article on Law Technology News summarizes the message put forward by several speakers at the fifth annual Colorado Association of Litigation Support Professionals E-Discovery Summit, held on October 7, 2011. In her article E-Discovery 'Command' Culture Must Collapse, Monica Bay discusses the old “command” style of eDiscovery, with a senior partner leading his “troops” like General George Patton - a model that summit speakers agree is "doomed to failure" - and reports on the findings put forward by judges and litigators that the time has come for true collaboration.
The highlights of the summit as far as a collaborative model of eDiscovery include thoughts by U.S. Magistrate Judge Michael Hegarty and Florida attorney William Hamilton, who say the time has come for adversarial, command-style eDiscovery to be replaced by a collaborative model, even with opponents, to result in a more effective discovery process.
Here is a brief summary of their opinions on the future of eDiscovery.
U.S. Magistrate Judge Michael Hegarty: Negotiation and Early Presentation of ESI are Key
Judge Michael Hegarty, of the U.S. District Court (Colorado), believes that minimal court intervention in discovery is best, but that mistakes are often made early on that cause discovery problems with respect to ESI.
- He remarked on how common it is for litigators to neglect to mention discovery of electronic materials in early conferences, and how "detrimental" that can be to cases.
- Judge Hegarty noted that a great deal of eDiscovery is unduly complicated because lawyers don't understand the scope of what it is possible to do with electronic materials. "It's easy for a party to say, 'We can't do that,'" he said, "but it's hard to imagine that something can't be done." He noted the lack of understanding as a key source of friction, and finds that he often has to wade in and order parties to purchase software that will make it possible for them to conduct complete discovery.
- The bottom line, according to Hegarty, is that the vast majority of cases never go to trial – surprisingly less than one percent of Colorado cases ever see a courtroom - and that's the way it should be. "We can't have discovery disputes sit around for months," he said. It's important to facilitate a communication process that includes ESI where appropriate in order to settle cases and move them along.
William Hamilton: Support Staff Make Like Possible for Attorneys
William Hamilton is a partner at Quarles and Brady in Tampa, Florida. He is also a professor at the University of Florida's law school, Levin College, where he teaches “Electronic Discovery and Digital Evidence”. Hamilton is also dean of an online graduate certificate program in eDiscovery at Bryan University, and chair of the advisory board of the Association of Certified E-Discovery Specialists (ACEDS).
- Hamilton's speech focused heavily on the role of support staff, the people who “make life possible for attorneys”. He says paralegals and technology staff have a larger role to play in discovery than ever before, but must be careful not to cross over into unauthorized legal practice as they assist litigators.
- He pointed out a need for change in the very culture of legal practice, where “[h]ierarchy culture disenfranchises everybody”. Bad decision making results from choices made by: “1) habit, 2) reputation, 3) haste, and 4) ‘pure command decisions”, he noted.
- "Only 10 percent of lawyers 'get' e-discovery," says Hamilton. It's time for that to change, he says, as a new paradigm for discovery of electronic materials is born.
Learn more about the Colorado Association of Litigation Support Professionals E-Discovery Summit on the Association's website or read the complete article on Hamilton and Hegarty's presentations at Law Technology News.
So, what do you think? Is a top-down approach to eDiscovery still viable, or is there a real need for the process to change to a more collaborative and communicative one? Please share any comments you might have or if you'd like to know more about a particular topic.