Trial Lawyers Turn a Blind Eye to the True Cause of the e-Discovery Morass

A distinguished group of trial lawyers recently completed a study on litigation which concluded that the main problem with the U.S. legal system today is e-discovery. Interim Report & 2008 Litigation Survey. Not too unexpectedly, they placed the blame squarely on poor rules, bad law, and judges. They overlook their own role in the problem. The report does not even acknowledge lawyer incompetence with technology as one of causes of the morass. Like the profession as a whole, including most law schools, they are blinded by their own shadow. They have not yet realized the insights of Walt Kelly who said in Pogo: “We have met the enemy and he is us.”

I agree with the eminent trial lawyers and academics that conducted this study that our rules and law need reform, and our judges need to do a better job. But, in my opinion, the fundamental cause of the e-discovery problem is the failure of the legal profession, especially the trial bar, to keep up with the rapid changes in technology. That is why new rules and legislation alone will never fix the problem. Such reforms must be coupled with an aggressive attorney education program that starts in law school. Some law firms today are starting to awaken to this problem and set up internal training programs. So too are a few law schools. But the vast majority of our profession still refuses to own-up to the competency issue. They either ignore the problem of e-discovery all-together, like most academics, or they acknowledge the problem, like this report does, then blame anyone other than themselves. 

Interim Report & 2008 Litigation Survey

This interim report, aside from its competency shadow-blindness, is excellent and well written. It is a joint project of the American College of Trial Lawyers task force on discovery and the Institute for the Advancement of the American Legal System, a group based out of the University of Denver. I applaud these groups for recognizing the problem and trying to do something about it. There insights go well beyond e-discovery and I recommend a full reading.

This is an interim draft report. Hopefully they will take these criticisms as constructive and revise the final report to address the competency and education issues. Here is how they begin the report:

The joint study grew out of a concern that discovery is increasingly expensive and that the expense and burden of discovery are having substantial adverse effects on the civil justice system. There is a serious concern that the costs and burdens of discovery are driving litigation away from the court system and forcing settlements based on the costs, as opposed to the merits, of cases. Recalling that one of the original purposes of the discovery rules was to avoid surprises and to streamline trials, many are now concerned that extensive and burdensome discovery jeopardizes the goal of Rule 1 of the Federal Rules of Civil Procedure and of the rules in those jurisdictions that have adopted similar procedures: a “just, speedy, and inexpensive determination of every action and proceeding.” In fact, 81 percent of the respondents to the survey conducted by the Task Force said the civil justice system was too expensive and 69 percent said that it took too long to resolve cases. 

I certainly agree with all of these points. The report then goes on to share the results of a survey conducted of the practicing attorney members of the American College of Trial Lawyers. This is a balanced group of plaintiff and defense oriented trial lawyers who must be nominated for membership and are screened for competency. It is considered an honor to distinguish yourself enough to be invited to join. The Trial Lawyers surveyed all of their 3,812 “Fellows,” as they call them, and 1,494 responded; a pretty high rate. The report brags that, on average, the respondents “had been practicing law for 38 years.” Of course, what this means is that this is a very old group.

Correlation Between Age and Tech Savvyness

In my experience, as a general rule, the older you are, the more clueless you are about technology. Look at Senator John McCain for instance, who candidly admits he cannot use a computer and relies entirely on his wife. In fact, one of his young advisers insisted, and even bragged with a straight face, that McCain is indeed aware of the Internet. This age/tech-ignorance correlation is especially true with trial lawyers, who tend to focus all of their technical attention upon the finer points of persuasion and the law, not on computers and algorithms. After all, if they had liked math and science, they would have gone to medical school.

I have been a trial lawyer myself for most of my career. To be honest, although I was pretty good at it, I was usually too distracted and interested in computers and technology to be one of the greats, not to mention the fact that my cases almost never actually went to trial. One side or another would almost always blink at the last minute and decide not to roll the dice on a judge or jury. I stopped doing general litigation work entirely over two years ago, so that I could devote myself full time to what I really love, e-discovery.

In my work as a litigator, I have been fortunate enough to get to know many great, honest-to-God trial lawyers. They are a smart and gregarious group, but most are almost totally inept when it comes to computers. Some even secretly still use their secretaries to send email. In fact, I recently heard about a senior litigation partner in a top national firm (not my own) who sent out a memo to his young associates asking if any of them knew how to use “The Google” to try to find out something for him. Of course, they all found that hilarious. Well, at least the senior partner had heard of Google and knew it might be useful, even if he had never actually used it himself (way too complicated). I suspect that this same partner is probably a member of the College of Trial Lawyers and no doubt a big supporter of Senator McCain.

Don’t get me wrong, these trial lawyers are probably all terrific in a court room, and could clean my clock in any jury trial. Just don’t ever ask them to turn on a computer, much less process and review ESI in an economical manner. To them it is just a big nightmare, primarily, I propose, because they are on foreign ground and do not know what they are doing.

The Fellows Analyze Litiation

Here is how these College of Trial Lawyer Fellows analyze the problem with litigation in the Twenty-First Century:

The discovery system is, in fact, broken. Discovery costs far too much and has become an end in itself. As one respondent noted: “The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else.” Electronic discovery, in particular, clearly needs a serious overhaul. It is described time and time again as a “morass.” Concerning electronic discovery, one respondent stated, “The new rules are a nightmare. The bigger the case, the more the abuse and the bigger the nightmare.” 

In particular, 87 percent agree that electronic discovery, in particular, is too costly, and 76 percent agree that electronic discovery issues are not well understood by judges. (sic)

So the blame game begins, and the “new rules” and judges are the prime suspects. In fact, the new rules, if properly understood, are a powerful tool to help us all out of the morass. The other easy target is our underpaid judges. They should fix things for us. On that point the report states: 

Judges should take more active control of litigation from the beginning. Where abuses occur, judges are perceived to be less than effective in enforcing the rules. According to one respondent, “Judges need to actively manage each case from the outset to contain costs; nothing else will work.”

I do agree with this point. Judges should be more active, especially to help manage costs, and as I have often pointed out, they should not wimp-out in the face of intentional abusive conduct by counsel. Still, judges need to be educated first, just like the rest of the profession, and given more time to work on each case; otherwise, their active control may well do more harm than good.

Here are some of the more interesting statistics from the survey:

Nearly 60% of Fellows reported having cases that raise electronic discovery issues.” (My Comment: this means that 40% of these distinguished Fellows have never had a case with electronic discovery issues! And yet, this same group, 87%, agree that electronic discovery is too costly.) 

Nearly 77% of Fellows say that courts do not understand the difficulties in providing e-discovery;

Over 75% of Fellows agreed that discovery costs, as a share of total litigation costs, have increased disproportionately due to the advent of e-discovery;

71% of Fellows say that the costs of outside vendors have increased the cost of ediscovery without commensurate value to the client;

63% of Fellows say e-discovery is being abused by counsel; and

Less than 30% of Fellows believe that even when properly managed, discovery of electronic records can reduce the costs of discovery.

Candid Thoughts of Trial Lawyers about e-Discovery

Appendix B to the report consists of select quotations from the Fellows who responded to the survey. Many of these quotes pertained to e-discovery and you may find a few of them interesting, if not revealing:

“The new rules on discovery of e-mail will make litigation too expensive.” (I disagree with that one. The new rules do not even mention email. In fact, email discovery has long been too expensive, but it is not because of the rules (except maybe the old rule allowing discovery of irrelevant information, so long as it is reasonably calculated to lead to admissible evidence). It is too expensive because lawyers and judges do not know what they are doing, and do not know how to properly cull and review email, and because clients are disorganized pack-rats. Many of the e-discovery vendors are also misinformed, but often they do know better; they just have no pecuniary interest in aggressive culling. Some may even seek to line their own pockets in inflated discoveries.)

“We have sacrificed the prospect of attainable justice for the many in the interest of finding that one needle in the forest of haystacks.” (I agree with that one. In the field of ESI this attitude arises out of misunderstanding and misapprehension of the staggering volumes of ESI now stored by most pack-rat dominated companies, and the impossibility to find all the needles. Requesting parties and judges need to understand that only reasonable efforts are required, perfection is unattainable, and cost should be the primary factor in determining reasonable proportionality.)

“E-discovery is a morass ─ to quote Justice O’Connor.”

“In many cases the cost of doing e-discovery may run into the millions of dollars (in some cases to each side). The cost of complying with e-discovery has become an impediment in the way to the doors of the Court House.”

“My belief is that the greatest change that could be made is to reduce the scope and expense of discovery. The latest e-discovery adds incredible layers of work at the client’s business and with its staff, as well as the lawyers, and has spawned a new layer of consultants all its own (a very bad sign), if one is looking to speedy and inexpensive, while being fair, justice.”

“The courts need to get a better grip on e-discovery. The expense involved for all concerned in handling the massive amounts of data threatens to swamp the entire system by turning litigation into nothing but an e-discovery donnybrook.” (For my younger readers “donnybrook” means a loud brawl or melee. To my really young readers, its a mosh pit.)

“E-Discovery is so expensive, it could ruin the system.”

“The biggest issue facing litigants today is how to handle e-discovery. It can be incredibly expensive, and costs are not routinely passed on to the requesting party. The rules are trying to address this, but there has to be a better solution with more certainty.”

“The rules on e-discovery are completely out of touch with the costs of such discovery.”

“E-discovery rules are a disaster.”

“E-discovery is crushing the system.”

Trial Lawyers Solution

So now you know what some of the country’s most distinguished trial lawyers really think about e-discovery. As far as I can see from my study of this report, it has not dawned on any of them that they may be part of the problem, or that they need to better inform themselves on the technological issues underlying e-discovery.

The Press Release announcing the interim report and survey explained what steps the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System now plan to take to address these problems:

Analysis of effective alternative civil procedure schemes in the United States and abroad; and

Development of a set of proposed principles that might govern any major revision of the discovery or other provisions of the Federal Rules of Civil Procedure. 

My Proposed Addendum to Their Plan

With all due respect to the distinguished Fellows, this plan will not work without including at least two more components.

First, we attorneys need to step out of our own long shadows and recognize that we are part of the problem. We need to admit that most of us are deficient in understanding the new technologies that drive today’s world. As a consequence, we no longer understand the technological media in which our clients operate. We do not understand the evidence crucial to the outcome of most cases. We do not know where to find it, nor how to gather it, nor how to look at it properly when we do. We have delegated too much to e-discovery vendors, some of whom are driven by immediate profit motives, not the best interests of justice and efficient dispute resolution. Simply put, many of us are not competent to practice law in the Twenty-First century where most evidence is digital, not paper. Until we recognize and acknowledge the competency problem, we will never be able to slog our way out of the morass with more committee meetings, rules, and principles.

Second and last, once we step out of our shadow, we need to address the problem with strong educational efforts in both the Bar and academic institutions. The work should begin in law schools. Most today do not even offer courses in discovery, much less electronic discovery. The professors do not find it theoretical or interesting enough to warrant their attention. That is irresponsible. The College of Trial Lawyers is correct to see e-discovery as a real problem, even if they do not yet understand the full dynamics of the problem. The academic colleges need to awaken too, and start to train law students for the advanced technologies that await them in the real world.

The admissions departments of law schools should also take this pressing societal problem into account and recruit technologically sophisticated students. Computer science majors should be given a preference. It is a mistake to fill our law schools with only Political Science, Philosophy, and English majors. Moreover, law schools should start to consider offering dual degrees and collaborate with the Computer Science Departments. At the very least, there should be e-discovery certificate programs for law students. The employability of such graduates would increase dramatically.

Technology is rapidly changing, and if the law is to remain relevant, it must change and adapt just as fast. A lifetime of continuing education and study is needed to maintain competence in today’s world. Lawyers must understand the world in which they live in order to serve their clients effectively. Lincoln learned the new, advanced technologies of his day: railroads. We must do the same to remain relevant.

Trial lawyers especially have to understand the digital information age in which we live. Their job is to investigate and prove the truth of what happened in the past in order to resolve the disputes of the present. The stories of what happened yesterday are all stored in computer networks around the world, waiting on clever lawyers to uncover and reveal the truth.


No one can operate effectively in the court rooms of tomorrow without a good understanding of where the digital evidence is stored, how to retrieve and review it in a forensically sound yet cost effective manner, and how to have it admitted into evidence at trial. These are tricky skills, even for those of us who do e-discovery, and only e-discovery, full time. Most of the Fellows who answered this survey are unlikely to have the time or inclination to study and master these new skills. A lot of the burden will necessarily fall on young lawyers and law students. They have the time, energy, and aptitude. They have grown up in a digital online world. They are the long term solution to this problem. The sooner law schools recognize this, the better.

In the meantime, trial lawyers should accept that specialists in the field of e-discovery are a necessary evil. If an e-discovery specialist knows the field, they can save you money and take you out of the e-discovery morass faster and more reliably than a dozen new rules. The world today is too complex for one man or woman to do it all. In today’s global, interdependent world we all need to work together in teams. If trial counsel does not love and understand technology, they should affiliate with someone who does. When law schools get the message, there will be plenty of new associates available who are ready and able to fill the bill. In the meantime, deal with the consultants and other specialists.

Electronic discovery can be done in a cost effective manner, if you know how. The way out of this morass is learning, and the knowledge and wisdom that eventually comes with it. Study is required by everyone: lawyers, judges, paralegals, technicians, professors, and law students alike. We all need to master technology, especially technologies related to electronic discovery. This, in turn, requires learning to work with Information Technology experts. The alternative is to turn back the clock to a paper world, turn off all of the damn computers and stop sending emails. I know many lawyers out there who might like that. But, since that is not likely to happen (your kids won’t allow it), we need to start understanding all of these high-tech toys, at least well enough to find the evidence they generate and hold, and not break the bank in the process. It can and will be done as soon as we accept responsibility for this problem ourselves, stop blaming it all on the rules and judges, roll up our sleeves, and start learning how it all works.

12 Responses to Trial Lawyers Turn a Blind Eye to the True Cause of the e-Discovery Morass

  1. Ralph: You say, “It is too expensive because . . . clients are disorganized pack-rats.” Are you saying enterprises should destroy more e-records more quickly? I argue the opposite. Many recent cases show how tricky and dangerous a litigation hold is. I argue they motivate enterprises to give themselves a wide margin for error and therefore keep more records longer. –Ben

  2. Ralph Losey says:

    No, not after notice of the dispute. Obviously they must implement a lit hold. My reference to pack-rats is the near universal tendency of both IT and management to save much more data than they need to before any notice of a dispute. They also tend to save it in a disorganized fashion that makes it hard to find things later when they need to, like after a lit-hold issues. This is a problem with records management. Most companies do a poor job with ESI records management and are reluctant to spend the time and money required to fix it. So they pay more to find stuff later when they need to, and they have to search through far too much junk.

  3. Ralph is absolutely correct in pointing out the additional requirements. Many lawyers may not like or appreciate the decision reached by Klein J In re Vee Vinhnee, debtor, American Express Travel Related Services Company, Inc. v Vee Vinhnee 336 B.R. 437 (9th Cir. BAP 2005), but his refusal to admit the evidence because there were no proper evidential foundations must be right. This example clearly illustrates the point made by Ralph: ‘Simply put, many of us are not competent to practice law in the Twenty-First century where most evidence is digital, not paper.’ It is becoming very difficult to argue that digital evidence does not have proper evidential foundations, especially with banking records. This is an issue that affects lawyers across the world, and many lawyers and judges fail to appreciate that digital records should be properly tested in legal proceedings. Banks often only wish to adduce evidence that, at best, is second or third hand (sometimes mere assertions), and rarely adduce evidence relating to the technical and organizational issues that should be introduced to demonstrate the integrity of the data and whether it can be considered to be trustworthy, which in turn can go to prove reliability (for which see the tests described by Professor Imwinkelried in his text Evidentiary Foundations (LexisNexis, 6th edn, 2005) and my comments in my text (chapter 4). Clients need to be informed clearly what digital evidence must be adduced to lay the proper evidential foundations (unless the evidence is not in dispute), yet it appears that lawyers often do not know what evidence is required to prove a point, and the opposing lawyer, because of their lack of knowledge, fails to challenge the inadequacy of the evidence.

    This point leads on to Ralph’s second requirement. I also concur with this condition. In the second editorial I wrote for the Digital Evidence and Electronic Signature Law Review in 2007, I made the position clear:

    ‘The introduction of paper caused some lawyers consternation in Europe, mainly because lawyers did not know how to assess the veracity of the contents recorded on the paper carrier. As a result, elaborate rules were developed in some countries for the authentication of documents recorded on paper so as to prevent or counter attempts at fraud. At the time, the pace of change was probably slow enough to ensure that lawyers, judges and those that entered the profession were able to improve their knowledge and understanding of the evidential requirements relating to the introduction of paper relatively easily.

    ‘However, some centuries later, a similar change has already taken place with respect to digital data, and, it seems, that a large majority of lawyers, legal academics and judges have failed to realize they are now living in a world dominated by digital evidence, and that digital evidence is now the dominant form of evidence. Although quantifiable figures are not available, it can be asserted with some confidence that the majority of lawyers, legal academics and judges do not know they do not know; a smaller number know they do not know, and an even smaller elite know about digital evidence, but they are realistic enough to know they need to know more.
    The law acts as a means to provide for social stability, yet if lawyers and judges fail to grasp that they need to begin to understand the attributes of evidence in digital format, individuals that are caught up in events such as those illustrated in the case of the State of Connecticut v Julie Amero (January 2007, Docket number CR-04-93292, Superior Court New London Judicial District at Norwich, GA 21) will find themselves subject to the collective failure of the legal system: by the prosecution, defence and judge. This failure to become familiar with evidence in digital form by the participants in the legal system is further acerbated by the failure of the majority of universities and law schools across the world to incorporate any discussion of digital evidence into the curriculum. This means that the majority of students are taking degrees and participating in vocational training that ignores the new reality, that virtually all evidence brought before a court within the next three years will be from a digital source ….. Yet the vast majority of students, lawyers and judges do not know how to assess such evidence, nor are they in a position to brief digital evidence specialists effectively, or to ask the right questions of such specialists during the legal proceedings.

    ‘This state of affairs will continue for some time, and it seems probable that many people brought before a criminal court may well face rough justice if the digital evidence is misunderstood by the lawyers and judge alike. In addition, parties in civil proceedings may also face serious obstacles if their lawyers and the judge fail to understand the importance of digital evidence: one European lawyer informed the editor this summer that they witnessed a judge refuse to receive photographic evidence taken on a mobile telephone of the damage caused to a motor car by another driver because, the judge asserted, the evidence could have been fabricated – there was not even a discussion as to the burden of proof or the procedure relating to which party could call into question the authenticity of the photographs – the judge blankly refused the admission of the evidence.

    ‘At the other end of the continuum, United States Magistrate Judge Paul W. Grimm in Lorraine v. Markel and American Insurance Co 2007 ILRWeb (P&F) 1805, 207 WL 1300739 (D. Md. May 4, 2007) provided a useful academic paper on the authentication of digital evidence, yet failed to indicate why he decided to dismiss certain evidence because it was not authenticated.

    ‘Unless legal academics educate potential lawyers in digital evidence, and judges and lawyers concern themselves with the need to be educated in the topic, more rough justice can be expected across the globe. Not only rough justice. Lawyers in some jurisdictions can expect to face actions for negligence: this will then cause the professional indemnity insurers to take notice, and lawyers will then rush to become more educated. In the meantime, it is only to be guessed how many lay clients will be at the receiving end of poor legal advice in respect of digital evidence.’

    Ralph is absolutely correct. All aspects of digital evidence and electronic discovery (disclosure in England & Wales) ought to be part of the curriculum of universities and organizations that provide vocational courses (for instance, to be a barrister or solicitor in England & Wales, you are required to pass a one year vocational course). At present, the educators are failing to educate. Lawyers are obtaining a qualification with no knowledge of digital evidence or electronic discovery. This is insane, and it is for the educators to understand that they have failed in their duty to the individual lawyer, the clients that will seek advice and help from the newly-qualified lawyer, and society in general, for failing to include such important topics in the curriculum.

  4. Peterk says:

    a good article ruined by an apocryphal story about a presidential candidate.

    as a professional records manager it is my experience that most attorneys do not understand records retention requirements nor how an organization maintains their records.

    Much of the problems with regard to unstructured data results from the failure of IT departments to understand records management and to work with records management professionals in the implementation of tools and solutions that provide control over that information

  5. Doug Allen says:

    Peterk is on to something here. Rather than focus the appropriate attention on working through semi-structured information (email), a number within the IT community appear to believe that their focus should merely be on how to store all the “stuff”, and on how soon they can be rid of it. I hate to say this, but those who take such an approach fail to understand that the homework of classifying ALL records, including email, based on content….and assigning retention periods that meet legal requirements and business needs to those records is something that must be done if an organization is to protect its interests.

    Douglas P. Allen, CRM, CDIA+

  6. Erica Frank says:

    I work in litigation support. Our company does e-discovery, scanning, printing for trial support, and various other digital litigation services.

    I can confirm that the majority of our clients have no idea what they need, and are forced to rely on our advice about what and how to produce–and we are not lawyers; we don’t know what they need or want. We have a reasonable awareness of the legal requirements, but that doesn’t tell us what they need for any particular case.

    We regularly get scan jobs that say “scan to disc”–with no awareness that there’s, at a minimum, filetype and name choices involved. We’ve been asked to produce email archives… and had the job cancelled, after a dozen hours of billing time, when the client realized that a 45mb email archive could be 50,000 pages.

    Many lawyers are apparently unaware that there is *no* correlation between “filesize” and “number of pages.” That many digital files can’t be produced in any useful way. Since the iPod explosion, they’re now aware fo the existence of MP3s, so we can explain that sound files (and video files) can’t be printed, but we have a harder time explaining that internal program code-files are gibberish when printed.

    I’ve printed tens of thousands of pages for lawyers who can’t figure out how to limit the print run, because they don’t understand the digital filing system. Have delayed three days because the lawyer in charge was out of town, and we didn’t know how they wanted digital files merged with the physical files we had to scan. (Which ones get numbered first?) Have tried to patiently explain that there is no such thing as an “exact printed copy” of an Excel spreadsheet, especially one with formulas and macros. Have converted hard drives to TIFs with thousands of place-holder pages saying “FILETYPE NOT SUPPORTED” because .dll files will not become useful images… and we didn’t know if the lawyer needed evidence of the file being there (hey, at least the tif indicates a .dll with that name in that folder) or if they only needed the user-readable documents.

    And that’s before and outside of all the issues with metadata, file editing, duplicate files, and files with names like “PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO SUPPRESS PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION TO VACATE SECOND ADMINISTRATIVE ACTION.PDF,” which can crash programs if it’s more than about two nested folders inside anything. (Which some scanner no doubt meticulously typed in, and charged for, because the lawyer who ordered the scans didn’t explain what abbreviations are acceptable.)

    More education about digital files is needed. For lawyers, for judges, for paralegals, for office clerks… everyone who handles these files, even at the level of “they left the disc for you; here it is,” needs to have a basic understanding of what’s going on with them.

  7. Ralph Losey says:

    Peterk – you said: the reference to Senator McCain was “apocryphal story about a presidential candidate.” Have you clicked on the link to the video? This is exactly what he says. Unless you think the video has been altered, I do not see how you can call it an “apocryphal story.” I appreciate his honesty and have always admired Senator McCain for that.

  8. […] Losey, never one to mince words, recently analyzed a recent litigation survey from the elite Fellows of the American College of Trial Lawyers. The […]

  9. […] both instances, the core notion is that “we’ve met the enemy and the enemy is us” because it’s the participants in the process have collectively perverted the discovery […]

  10. […] in-house counsel too, blame the new rules and our judges. They see the problem, but, as I have said before, they misdiagnose the cause. They are hoodwinking themselves like the emperor with his phony new […]

  11. […] Litigation Survey of the prestigious American College of Trial Lawyers. My article was entitled Trial Lawyers Turn a Blind Eye to the True Cause of the e Discovery Morass. Although I praised part of the report, I was highly critical of the e-discovery aspects, […]

  12. […] subject: Why E-Discovery is Ruining Litigation in America and What Can Be Done About It and Trial Lawyers Turn a Blind Eye to the True Cause of the e-Discovery Morass. One, two, and three there on the slide are the names of the three different articles that I wrote […]

Leave a Reply