The E-Discovery Crisis: An Immediate Challenge to our Nation’s Law Schools

hamiltonloseyteach1Guest Blog by William Hamilton

The e-Discovery Team blog has repeatedlycalled for teaching e-discovery at law schools.  Just as global warming is no longer debated among serious scientists, no one doubts the digital information revolution has dramatically altered the discovery process. Indeed, The Sedona Conference®,  and judges in the federal and state judiciary, have unequivocally told the profession that the digital age has dramatically changed discovery and that long standing practices have become archaic and require modification. Indeed as the E-Discovery Team blog has reported, in his most recent decision, Judge Grimm has gone to great lengths to inform litigators of what one would think is obvious by now – stop treating data like paper – and to teach experienced lawyers how to conduct the most basic steps of discovery. Mayflower v. Mancia, 2008 WL 4595175 (D.Md.); See also Ralph Losey’s article: A New Opinion by Judge Grimm Makes the Legal Case for Cooperative Discovery.

Who cannot have noticed what e-discovery has wrought? What more dramatic notification to the bar could there be that discovery has dramatically changed than the sweeping changes in the Federal Rules of Civil Procedure of December 1, 2006, and the more recent creation of Federal Rule Evidence Rule 502? There are now e-discovery blogs which provide the service of listing e-discovery blogs. The vendor world has mushroomed in over 700 viable companies and the vendor market has increased to what is estimated will be a $4 billion industry in 2009. E-Discovery vendors have swamped the annual Legal Tech conference which is bursting at its seams in its current location. The annual ILTA conferencevendor area too has taken on the appearance of a forum predominantly featuring e-discovery vendors. None of this is startling news. Readers of the e-Discovery Team and numerous other e-discovery blogs and resources are very familiar with the details. Yet, notwithstanding the extensive coverage, e-discovery failures continue, apparently unabated. Moreover, many of the dramatic e-discovery failures of the past two years have involved firms at or near the top of the profession.

The e-discovery professionalism crisis continues, notwithstanding a plethora of CLE and other educational programs which have become readily available in the past few years. E-Discovery CLEs have become a sub-cottage industry with the CLE colossus. Still, the CLEs are not yet having a sufficient salutary impact on the level of e-discovery competence in the bar. Perhaps the reason is that e-discovery CLE’s are traditionally presented in a lecture format where the audience is overwhelmingly in a passive, receiving mode. The normal structure is that the CLE lecturer presents the most recent and important cases on a particular area of law which the participants duly record and preserve for latter reference. The best seminars take on a dialogue or discussion format which becomes increasing difficult with a larger audience. A similar problem exists with vendor white papers, webcasts, and taped educational programs. Moreover, notwithstanding the best of intentions, vendors work in a highly competitive business driven by the need to sell products. Lawyers looking for e-discovery expertise will find vendor presentations informative, yet ultimately directed toward the “sale.” Many law firms have formal and informal internal e-discovery training programs. Such programs are wonderful and are usually the work of a dedicated core of e-discovery zealots within the law firm. Yet these programs face the daunting challenge of implementation under the pressures associated with the crush of billable hours and economics of the modern law firm. See e.g. The Elastic Tournament: A Second Transformation of the Big Law Firm.

hamiltonThe judiciary (principally federal magistrate judges), CLE programs, law firm training, vendor white papers, blogs, and think tanks each have a role to play and are fully engaged in meeting the e-discovery crisis. The missing player, with a few notable exceptions, is the nation’s law schools. Amidst what has been variously called a “revolution,” “paradigm shift,” and “tsunami,” our nation’s law schools have been mired in a thunderous quietude, similar to the volume of one hand clapping. While the civil justice system is in crisis, our law schools are behaving in a manner akin to fastidiously arranging the deck chairs while the Titanic goes under. Our civil litigation may not yet be sunk, but there is little doubt about the current e-discovery crisis. Mancia v. Mayflower, 2008 WL 4595175*6 (Although the civil justice system is not broken, it is in serious need of repair…” quoting from Am. Coll. of Trial Lawyers & Inst. for the Advancement of the Am. Legal Sys., Interim Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System 3 (2008)).

This is not a situation where the practice of law merely needs to catch up to a change that has taken place, but is now ended. The opposite is the case. The digital information universe continues to expand exponentially and constantly is morphing into new complexities. How many people knew of Twitter a year ago? How many companies operated internal WIKIS a year ago? What virtual world will next emerge? Third Life? And the digital world is now on us expanding exponentially. The data deluge has become its own ecosystem. George L. Paul, Foundations of Digital Evidence, ABA Publishing 2008 (see pages 23-26 discussing “the rise of an “informational ecosystem”). According to a recent ABA survey, our civil litigation system is bogged down in a morass of e-discovery making it to expensive to get their cases to trial. The wonderful forces of technology unleashed in Information Age has left the station, and our nations law schools have yet to purchase a ticket!

Yet, while the civil justice system flounders under the weight of the digital revolution, our nation’s laws schools blithely continue to teach civil procedure as if nothing or little is happening “out there.” There are very few course offerings on electronic discovery and evidence. Of course, there are exceptions. Individual professors have taken up the cause. The University of Florida Levin College of Law, Cumberland School of Law, Georgetown University Law Center, and others have offered some formal instruction on e-discovery. But, taken as a whole, our nation’s law schools have not committed their formidable resources to the challenges of e-discovery. As Ralph Losey has written in the e-Discovery Team blog:  ”Most law schools have ignored the problem of e-discovery altogether, and offer no classes on the subject… [M]ost law schools have not stepped up to the plate to address this problem.”

losey

This is a shocking embarrassment. How can our law schools witness the most profound change in the practice of law since the 1938 Amendments to the Federal Rules of Civil Procedure , yet fail to equip students with the skills to navigate and survive in this new world? It is not as though danger is not lurking around every e-discovery corner. Indeed, as Ralph Losey has noted, e-discovery sanctions are reaching epidemic proportions. Again, as Losey put it: “Some experts believe that attorney incompetence in e-discovery is so widespread, that it presents a massive ethical crisis across the entire legal profession. Anecdotal evidence from e-discovery vendors confirms this.”

E-discovery sanctions raise the specter of a crisis in the profession and whether lawyers are meeting the minimum levels of competence necessary to practice law in the Twenty First Century. This week, Mercer University is hosting a conference on Ethics and Professionalism in the Digital Age which will address this crisis. Losey in these pages has suggested that the dismal level of e-discovery competence has allowed the duties of zealous representation and confidentiality to overwhelm the counter duties of candor to the tribunal and profession. This very point underlies Judge Grimm’s recent decision. Whatever the cause, there is no denying the problem.

The irony is that our law schools who have side-stepped the problem may be best equipped to address the e-discovery crisis. Our law schools operate in an educational environment absent crushing time and business restraints. Students at law schools have the time to think, work, and struggle with e-discovery in a tolerant, incubating environment. E-discovery can fit well into an academic setting, but only when the professors employ a practice oriented kind of “learning-by-doing” methodology. The best e-discovery pedagogical model is problem oriented. All learning must be useful. Nothing is worse that learning inert principles or doctrine. All education, including legal education, must be practical and address real problems and issues. As Alfred North Whitehead noted years ago:

Pendants sneer at an education which is useful. But if education is not useful, what is it? Is it a talent, to be hidden away in a napkin. Of course, education should be useful, whatever your aim in life. It was useful to Saint Augustine and it was useful to Napoleon. It is useful, because understanding is useful….Education is the art of the utilization of knowledge.

Alfred North Whitehead, The Aims of Education, The Free Press (1929).

It is not sufficient for our law schools to abstain from critical practice skills on the theory that they are only teaching legal reasoning and sharpening the student’s critical skills for latter application. Such an education mires the student in boredom unless the student is already intellectually absorbed in the subject.

As applied to e-discovery, it is one thing to lecture students on how the key players and IT personnel must be interviewed to determine the potential locations of ESI once the issues and relevant facts in a case have been identified. It is quite another to actually have them do it, to conduct the interviews themselves. To just lecture on the issues, as in a typical CLE, lacks vitality and is ineffective. After a few repetitions, the advice sounds mundane and is easily pushed to the back of the “to do” list. The tough part is to actually carry out these interviews in an effective manner. There is no recipe for doing this. Checklists may help. But interview skills are critical for the e-discovery practitioner. The closest that a CLE program or lecture comes to achieving this model is by watching a skilled practitioner conduct a proper interview. But that only teaches you that it should be done, not really how to do it. It is a rare lawyer who will try to learn these skills in the frying pan of actual practice. The most obvious solution is to set up a safe learning environment where anxiety and potential embarrassment are removed, or at least limited. Then the skills can be learned by doing.

This is why our nation’s law schools must commence a campaign to teach e-discovery. These institutions have both the time and resources to teach e-discovery correctly as a unique combination of case book and practice course. Perhaps this is one reason that law schools have not jumped to teach e-discovery. Teaching e-discovery requires an instructor skill set and interests that do not completely overlap the traditional teaching methods. For example, in teaching my course, we do not stop at merely reading the brilliant, highly instructional Zubulake series of cases, but actually bring into the classroom the IT professionals in charge of the law school’s data networks.

Andy Adkins UF Law ITI’m lucky to have Andy Atkins (shown left) and Mark Robinson of the University of Florida’s Legal Technology Institute as willing volunteers to work with. I create a not far-fetched mock practical problem; for example an age discrimination case by a senior professor who was passed over for an administrative position. The class collectively analyzes the potential facts, issues, and key players. Andy and Mark (who is the actual law school IT director) then join the class and the interview process begins. The interview process stutters, side tracks here and there, and gets lost amid all of the servers, devices, and applications. It sounded easy when we read the cases. But very quickly, students realize e-discovery is both fun and hard work to try to deal with gaps in backup tapes, upgrades to existing software, legacy systems, and the like. Little is accomplished after an hour, as one student after another tries to pick up the data thread and track the data locations. Students become painfully aware of the value of a data map or audit. They also discover that writing a Litigation Hold Notice that does not also paralyze the law school is a daunting task.

Exercises like this teach students the value and difficulty in communicating with professionals who live and work in a different vocabulary. Our exercises also demand an assessment of risk and cost that e-discovery work requires. A good e-discovery course will equip students with the experience and competence necessary to resist the “wicked” pressures that Ralph Losey has so cogently discussed in Lawyers Behaving Badly.

oot-ans-ques1Teaching e-discovery means working through each of the e-discovery phases outlined in the EDRM model with similar hands-on experimental approaches. Teaching e-discovery is for those with practical Aristotelian tendencies who disfavor Platonic deductions of truths from general principles. Classes must be reasonably small. My classes at the University of Florida law school are limited to 30 students. We meet for 2 hours once a week during the entire semester. The method of instruction is collaborative dialogue. The goal is to have the students talking amongst themselves as much as with me. In the first hour we discuss assigned case law and current events. My “textbooks” are RalphLosey’s e-Discovery: Current Trends and Cases and The Sedona Principles, Second Edition, 2007 Annotated Version.

In the second hour, we re-create the everyday practical problems confronting an e-discovery attorney. You can no more teach e-discovery by providing students with a check list than you can teach flying by providing a training pilot with a check list. Check lists are necessary for both, but not sufficient. ABA Litigation Section Reacts to the Qualcomm Case and Recommends e-Discovery Checklists; see also Qualcomm Fined for “Monumental” E-Discovery Violations—Possible Sanctions Against Counsel Remain Pending. Students need to work at e-discovery, not merely listen and collect forms. The Socratic method is helpful to a point. But students need to field practical problems and not just hear a litany difficulties and parades of horribles.

Too often case law merely reports failures. Perhaps this is why Judges such as Shira Scheindlen, John Facciola, Paul Grimm, and David Waxse take pains in their opinions to lay out road maps about how to do e-discovery right. SeeRockin Out the E-Law.” This may also be why the plethora of case law involving sanctions is having less of a salutary effect than one might hope. In many e-discovery cases, in retrospect, the failure seems obvious. The difficulty of e-discovery may ironically be masked by the clear case law. Just as hitting a baseball seems easy on television, so doing e-discovery seems easy at a distance. But try hitting a 90 mph slider or 95 mph fastball. Similarly, identifying client data locations at the onset of litigation may sound easy, but it is not. I have found little in my legal career that is more taxing than e-discovery.

Recognizing the obvious, The Sedona Conference has recently launched a student outreach program. The next generation of lawyers is being trained now in our nation’s law schools. Rather than teaching old dogs new tricks, let’s impact the new generation at the outset.

Professor Hamilton introduces the panel As part of its Outreach Program, The Sedona Conference recently teamed up on October 28th with the University of Florida’s Levin College of Law to present an E-Discovery Evening. This was the first campus event sponsored by The Sedona Conference. The message was clear as thisstudent write-up of the event shows. It is high time for e-discovery to move to the law school campus. Ken Withers(shown below) moderated a panel designed to present to the students a report on what’s happening “out there” in the field, and to emphasize the importance of e-discovery in litigation and other facets of law. Patrick Oot, (left on the panel) Director of Electronic Discovery and Senior Litigation Counsel at Verizon, spoke from the client perspective. Joe Guglielmo (second to left) handled the plaintiff’s perspective. Ralph Losey, wearing his Akerman Senterfitt hat, took the defense perspective. Magistrate Judge David Baker (on the right), from theMiddle District of Florida, spoke from the perspective of the judiciary.

Ken Withers from The Sedona ConferenceKen (shown right) opened the program with a witty and scholarly history of discovery from the adoption of the 1938 amendments to the present crisis. Ken noted that originally trials were contests of courtroom skills. The 1938 Amendments permitting discovery were added to prevent supervise and ambush. Document management in discovery did not become a problem until theproliferation of copy machines and paper copies in the 1970s and early 1980s. Data in its digital incarnation however is markedly different than paper and presents immense volume and complexity. Ken quoted Jason Baron’s and George Paul’s article in Richmond Journal of Law and Technology article, “Information Inflation: Can the Legal System Adapt?13 RICH. J.L. & TECH. 10 (2007). Probably close to 100 billion e-mails are sent daily, with approximately 30 billion e-mails created or received by federal government agencies each year, ” they report. And they provide us a concrete illustration:

[L]litigation in which the universe subject to search stands at one billion e-mail records, at least 25% of which have one or more attachments of varying length (1 to 300 pages). Generously assume further that a model “reviewer” (junior lawyer, legal assistant, or contract professional) is able to review an average of fifty e-mails, including attachments, per hour. Without employing any automated computer process to generate potentially responsive documents, the review effort for this litigation would take 100 people, working ten hours a day, seven days a week, fifty-two weeks a year, over fifty-four years to complete. And the cost of such a review, at an assumed average billing of $100/hour, would be $2 billion. Even, however, if present-day search methods [. . .] are used to initially reduce the e-mail universe to 1% of its size (i.e., 10 million documents out of 1 billion), the case would still cost $20 million for a first pass review conducted by 100 people over 28 weeks, without accounting for any additional privilege review.

Patrick Oot explains the numbersKen noted that simply doing the math as Baron and Paul have done, results in scenarios that sound absurd, but recent reported cases bear out their numbers. For example, all parties in the ongoing Intel microprocessor antitrust litigation agree that it may be the “largest electronic production in history” with the paper equivalent of Intel’s production “somewhere in the neighborhood of a pile 137 miles high.” In the infamous Qualcomm Inc. v. Broadcom Corp. case, Qualcomm’s supplemental post-trial production last summer of 21 employees’ emails responsive to one particular issue resulted in 46,000 messages, totaling 300,000 printed pages. And closer to home, in the now infamous Coleman Holdings v. Morgan Stanley case in Florida state court, we will never really know the total, since the defendants kept finding more and more before sanctions ended the search.

Years ago, the Sedona Conference sensed the “tipping point” that the digital data deluge was creating. According to Ken, Sedona’s work in e-discovery is based on four key pillars which support all of its principles:reasonableness, cooperation, proportionality, and transparency. Fortunately, the University of Florida law school’s Journal of Technology Law and Policy will be publishing Ken’s opening remarks in its Winter edition.  To me, the underlying point of Ken’s presentation and the panel dialogue that followed is that the costs of e-discovery must be controlled by a new set of tools and behaviors if the historical promise of discovery in general, namely increased justice, is to prevail. Otherwise, we will find ourselves back in a version of pre-1938 litigation environment, or non-common law civil justice systems featuring inquisitorial magistrates, or in private arbitration and dispute resolution. See Monroe H. Freedman,Understanding Lawyers Ethics, LexisNexis (2004) (Section 2:09, pp. 28-30).

Patrick Oot (above) spoke next about the explosion of ESI in discovery and review costs. Patrick’s point was that corporations must, and are, dealing with e-discovery issues internally and that students should think about careers in e-discovery in corporations. Patrick presented the interesting story of Verizon’s successful efforts to support the adoption of new Federal Rule Evidence 502. These efforts were driven in part by a recent case Patrick described where privilege review costs were astronomical. This concerned the $8.4 billion merger of Verizon with MCI where they had to review over 2.4 million documents (1.3 terabytes of data). The review required a team of 115 attorneys at one firm doing privilege review and 110 attorneys at another firm doing timeline review. Patrick said it took four months with attorneys working every day for 16 hours a day to finish the review. The review process cost over $13.5 million for outside counsel fees alone.

Joe Guglielmo spoke from the plaintiff’s point of view. His message was that plaintiff lawyers need and must seek focused e-discovery. The Sedona Cooperation Proclamation is not merely for the benefit of defense counsel. Plaintiff’s counsel can no more incur the costs of review than defendants. Indeed, ESI sampling and testing of search terms is critical to a successful plaintiff’s practice. Joe’s message was clear: thoughtless broad stroke requests will produce an impossible review burden for the plaintiff. Be careful; you might get what you foolishly asked for.

Losey Explains Clawback AgreementsRalph Losey then reminded the audience of the e-discovery crisis and the importance of teaching e-discovery at the nation’s law schools. Ralph noted that the crisis demands competence and that an e-discovery education puts recent graduates years ahead of those already practicing in law firms.

Magistrate Judge Baker made a compelling argument for focused discovery. From his perspective, the old practice of asking for “Any and all documents, related to, about, or concerning” some topic is no longer workable. The parties to litigation must focus on the data needed to prove the facts in dispute. Taking up Ken Withers earlier example of all the data created by simply online booking an airline ticket, Judge Baker noted in any case only some of the data created in the booking process would likely be relevant (e.g. the date of the original booking) while other data would be irrelevant (e.g. when Ken printed his ticket). Asking for all the data “related to, about, or concerning” Ken’s online ticket was a recipe for excessive cost, delay, and burden. E-discovery requires carefully thinking about each case at the beginning and seeking only the data that is relevant to the particular proofs necessary. Anything else is too expensive and time consuming.

losey-judge-jest2

The Evening concluded with an engaging dialogue, with robust audience participation, over issues raised by a mock problem moderated by Ken Withers. The conclusion: nothing is easy about e-discovery. But it becomes all but impossible to control costs without dialogue akin to the now banished voting habits in certain municipalities: early and often.

losey-makes-em-laugh-and-judge-hold-ears

The E-Discovery Evening audience composition was also interesting. Beside University of Florida law school students and professors, the Evening was attended by many attorneys and data managers within the entire University of Florida community, lawyers representing local government, vendors, and practicing attorneys. The message was that the problems of data management and e-discovery loom large. The good news is that awareness of data management and e-discovery problems is increasing. Solutions are more elusive.

Student and Judge Baker

What practitioners need are the tools, experience, and practiced skill set to manage their problems. The Sedona Conference is developing tool kits to facilitate its Cooperation Manifesto.Mancia at *8. These tool kits will be invaluable to lawyers and clients. However, the immediate crying need is a commitment and undertaking by the nation’s law schools to teach e-discovery now. Students well trained in e-discovery will bring a new level of e-discovery competence and confidence to government, law firms, and clients. Such will trained students will have an immediate impact on the profession.

There is simply no reason that every law school cannot offer a robust e-discovery course by at least the Fall semester of 2009. The challenge is clear. The tools and resources are available. The only question is whether our nation’s law schools will meet this critical challenge.

2 Responses to The E-Discovery Crisis: An Immediate Challenge to our Nation’s Law Schools

  1. Daryl Dujon says:

    I’m doing an M.Phil in Social Policy and I’m working on an interpretive biography. I have all the information on the Whitehead quote, but I needed to know the page number in order to reference it properly. Could you help me out with that please? The book is on loan at the library, and I cannot wait for it to come in. Thank you for the assistance.

  2. […] state court judges in Florida and elsewhere subject to what some have called an impending Tsunami, revolution, or paradigm shift? Will electronic discovery continue its […]

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