E-discovery – does anybody really know what it is?

I mentioned in a recent post that E-discovery is a hot topic these days.  At the recent LegalTech conference that I went to there were swarms of E-discovery vendors packed into the exhibit hall booths.  And people were actually flocking to talk to them.

Why is E-discovery so hot?  First, lawyers are getting sanctioned for mishandling E-discovery.  Second, and this ties into reason number one, it’s completely incomprehensible to most lawyers.  Most of them understand that the ‘E’ part refers to ‘electronic’ and that it’s important to try to get at people’s E-mails.  But is that simple notion the key to understanding E-discovery, or is there something more?

Apparently, there is.  Or else Morgan Stanley wouldn’t have been subject to such an onerous sanction for supposedly mishandling E-mail discovery (i.e. the judge entered a partial default judgment against Morgan Stanley; how’s that for a sanction?).  The problem in Morgan Stanley was that not all the E-mails got turned over.  Why?  Was it because the lawyers were trying to deceive opposing counsel?  Maybe.  More likely the attorneys simply didn’t understand how to gather electronic information.  To properly gather electronic information you have to know some important things about the forms in which it can reside and the technical methods by which it is gathered.  Let’s look at how the judge in the Morgan Stanley case described the problem: 

The [sanction] Order outlined the discovery abuses …They included MS & Co.’s undisclosed discovery of the 1,423 "Brooklyn" tapes no later than May of 2004; the undisclosed discovery of the 738 8-millimeter backup tapes in 2002; the presence of unsearched data in the staging area; the discovery of 169 DLT tapes in January 2005; the discovery of more than 200 additional tapes on February 11 and 12, 2005; the discovery of a script error that had prevented MS & Co. from locating responsive email attachments; and discovery of another script error that had infected the ability to gather emails from Lotus Notes platform users.

How many of attorneys do you think are even passingly familiar with the underlined terms?  I’m going to out on a limb and speculate that there were some lawyers making key discovery decisions in the Morgan Stanley case who didn’t understand electronic information.

I’m not saying they weren’t good lawyers.  Let’s just say that this is an example of what Alvin Toffler called Future Shock.  Four or five years ago most lawyers could get by without knowing anything about electronic discovery.  Today, it’s suddenly of paramount importance.  How was the average lawyer supposed to have anticipated this development?

It doesn’t really matter.  The world has suddenly changed, and future shock has set in.  And now, apparently, E-discovery is going to be critical in many cases –especially commercial cases or cases that involve lots of electronic information.  Or maybe even in cases that don’t involve lots of electronic information, just some digital information.

Who’s going to teach these lawyers what they need to know?  Hint: the teachers are not among the rabbit warren of E-discovery vendors that you find a typical law-tech trade show.  At the recent LegalTech event in Los Angeles I almost had my arm pulled off by a guy who came up to me at the bar and asked me with a supercilious smirk if I knew what "the first thing I had to do if I had an E-discovery case."  He obviously wanted to prove that he had superior knowledge about how to handle my hypothetical discovery problem.  Sensing that I was supposed to confess ignorance, I did.

"Please tell me what ‘the first thing I should do’ is," I deadpanned.

His face became slightly less disdainful, and more sympathetic as he feigned concern for my plight. "De-dupe, man.  You’ve got to de-dupe, right?"

He then went on to explain that his company, which was clearly the industry leader in E-discovery, provided the de-duping service for free.  "Hey, okay, I give up.  Where do I sign?"

To be fair, that guy was drunk –and probably not the best example of most E-discovery vendors.  I think that most of them are trying to provide what they see as a needed service, and there is a need for those kinds of services.  And, removing duplicates (i.e. ‘de-duping’) is definitely important.  But, even granting that most E-discovery vendors are responsible and want to help attorneys do their discovery properly, what’s the thing we attorneys most need to understand about E-discovery? 

I think it’s safe to say that if E-discovery is really important (and it’s going to be in an increasing number of cases), then it is best for lawyers not to blindly rely on the E-discovery vendors to educate them about E-discovery.  I think it’s pretty obvious why that’s the case:  If a problem arises in the discovery process and a judge is threatening sanctions, is the judge going to back down when the lawyer says he was ‘acting in good faith and following the guidance of an E-discovery vendor?’

Not likely.  And it’s not likely that the lawyer’s client is going to be beaming with pride if that argument gets made in open court either.

So clearly we have a problem with lawyers not understanding technology, but there’s really a larger problem that is being masked by the focus on technology.  The problem is not so much with the introduction of technology into the discovery process.  The problem is that the introduction of technology has confused us to the point where we have lost sight of the key objective of discovery. 

In E-discovery the objective is the same as it is in regular old paper discovery: i.e., to find damaging information about your opponent as quickly and efficiently as possible, and then use it against them  At the same time, you want to identify damaging information about your client before the other side does.  This is basic stuff.  The trick is to accomplish this while sifting through digital data.  And that’s where the sloppy thinking comes in.  Many lawyers will say, "oh, I know how to do electronic discovery.  I’ll just ask the other side to produce their emails." And that kind of assumption often takes them right past a whole realm of potentially useful information.

That’s because digital information doesn’t just reside in E-Mails stored on corporate servers.  It also tends to exist in recipients’ corporate servers, in backup tapes, in personal archives, and in laptops with access to POP3 email accounts.  And ‘digital information’ includes more than just E-Mails.  There are PDAs, voice-mail messages (some that get delivered in E-mails), instant messages, thumb-drives, and host of other places where useful digital data might be found.  So the first job is identifying the range of data that you are looking for. And, then (and this is the most important part), you have to prioritize your search to key-in on places that are mostly likely to contain the data you are looking for.

The days of mindless, paint-by-numbers discovery are over.  The world has changed, and systems that worked in the old world need to be re-evaluated. Electronic discovery is most dangerous for attorneys that are used to off-loading ministerial case-management tasks to paralegals and other non-attorney assistants.  Key decisions have to be made about how to organize and filter electronic information.  Paralegals are wonderful people, but they shouldn’t be primarily responsible for making important decisions about how to handle discovery.  Well, sadly, in some cases maybe they should.

Consider the observations about modern discovery that a young legal professional sent me recently by E-mail:

I just happened to read your weblog entry about e-discovery and couldn’t agree more about its importance …. It’s actually the big thing on my mind right now. I’m working at a firm right now helping sort through a Summation database of about 200,000 records, and as someone with a lot of database experience and three years of law school I could quickly see that the way they are doing it is almost exactly wrong. They’re using a ‘brute force’ method–have paralegals attempt to read and summarize every single document, when what would make way more sense is to have a knowledgeable clerk or attorney quickly rate and sort the material for relevance first.

Yes, we’ve grown accustomed to brute force efforts in discovery.  But now, more than ever, we need less brutishness, and more intelligence.  We lawyers are, after all, practicing a learned profession.  So maybe, given that technology has changed the world that we were familiar with, we need to re-evaluate our methods.  Maybe we need to learn some new things.  I know I do.

By the way, if you want to learn more about electronic discovery I highly recommend Michael Arkfeld’s blog Electronic Discovery and Evidence.