e-Discovery Team

Guest Blog by Shannon Capone Kirk and Kristin G. Ali

You who are on the road
Must have a code that you can live by
And so become yourself
Because the past is just a good bye.

Teach your children well,
Their father’s hell did slowly go by,
And feed them on your dreams
The one they picked, the one you’ll know by….
–
Graham Nash
Teach Your Children

Who knew Crosby, Stills, Nash (and Young) sang of E-Discovery? The past surely is just a goodbye if the past is a world of law students learning nothing of E-Discovery – or, at best, reading the Zubulake headnote – prior to venturing out into the legal job market of today. 

No, today we have a code, a code we must teach our children, and that code includes new federal rules of civil procedure, ever changing and emerging local rules, and a complex web of fast growing case law – all related to one subject, E-Discovery. By some counts, there have been nearly 800 judicial opinions written about E-Discovery across the United States, and almost half of those cases were released since 2006. See www.krollontrack.com, Resources, Case Summaries. 

The current collection of published works on E-Discovery is quickly increasing in number and in sophistication. Hot off the press is the first law school case book on E-Discovery co-authored by Judge Shira Scheindlin of the Southern District of New York, Professor Dan Capra of Fordham Law School, and The Sedona Conference, entitled Electronic Discovery and Digital Evidence: Cases and Materials. For ordering, go to the West Thomson website. Its insightful and conversational counterpart for practicing lawyers and law students alike, e-Discovery: Current Trends and Cases, is also now on the market thanks to Ralph Losey and the ABA. No doubt these materials will be relied on heavily by the CLE courses on E-Discovery now in high demand with literally hundreds offered through 2008 and 2009. As further proof of this growing industry, there are approximately 700 E-Discovery vendors out there who, it is estimated, will generate an annual revenue of $4 billion dollars for 2009.

And what have we done to teach our children well? So that their legal practice is not the dizzying “hell” (as Nash would say) lawyers endure now in navigating the uncharted seas of E-Discovery – the sanctions, the technology, the new technology, the newer technology, the vendors, the review platforms, the advanced review platforms, the review platforms 2.0, 3.0, 4.0, 5.0, etc., the hold orders, the 30(b)(6) depositions, the conflicting law, metadata, e-gads metadata’s ugly step-sister, embedded data, the new and then new again local rules, and the sanctions again? Oh, our “hell did slowly go by” – but it doesn’t have to be that way ad infinitum. Ad infinitum, ah, but wait, here, I must digress to a wonderful passage from the author of Gulliver’s Travels, Jonathan Swift. An excerpt from “On Poetry: A Rhapsody” says it all:

So, naturalists observe, a flea
Has smaller fleas that on him prey;
And these have smaller still to bite ’em,
And so proceed ad infinitum.

Perhaps you prefer the more pedestrian “hole in my bucket” analogy. Regardless, the theme is the same, dear Liza, dear Liza. Whether it’s fleas or buckets or E-Discovery, this is the song that never ends, yes it goes on and on, my friend. E-Discovery is not a “fad” as I was told two years ago. It is something of law to stay and is, therefore, of import to law schools. And so, (thank you for my digression), the answer to the question, what have we done to teach our children well? Well, not too much. Ralph’s blog makes this very point in the feature article by William Hamilton on November 5, 2008 entitled, “The E-Discovery Crisis: An Immediate Challenge to our Nation’s Law Schools.” Also see Slaying the e-Discovery Dragon: Are Law Schools Up to the Task? Indeed, law schools have either been resistant to or blissfully unaware of the E-Discovery steamroller reforming the landscape of litigation today.

That steamroller can no longer be ignored as more and more cases are decided not on the merits, but on who had the best preservation methods or who could out-budget their opponent on E-Discovery costs. Whether we like it or not, E-Discovery is a major part of contemporary litigation. 

But how can law schools be convinced of this? Deans are generally conservative (and rightfully so) about entertaining costly new programs that don’t clearly show lasting relevance. This would especially be true in the current financial market. For any discovery program to get started, law schools would have to understand not only the ideological and theoretical need for E-Discovery education, but also the economic case for doing so.

The economic argument, I suggest, goes something like this … To begin, NPR recently estimated that E-Discovery costs can amount to 90% of a litigation budget. (See NPR, Morning Edition, June 18, 2008). To control these costs, to tackle the unfamiliar terrain of new law, and to translate the legal techy-talk, a growing number of firms and clients are hiring E-Discovery counsel. In-house legal staff and vendors have also been quick to see the value in E-Discovery counsel and have jumped at the chance to take advantage of their expertise. 

The numbers prove the point. Dave Cowen of the Cowen Group, a national firm specializing in staffing and recruiting for litigation support, reports a 300% increase in the number of E-Discovery counsel and attorneys in the United States over the last 12 months. According to Cowen, no less than 35 AMlaw firms have E-Discovery counsel, and that number is on the rise as many firms are in pursuit of new talent. Cowen announced the opening of 12 positions, up from 3 this time last year, for full-time E-Discovery counsel. The demand, he says, is “coast to coast” and “growing.” Cowen’s advice to attorneys is “you need to get current and read prolifically – at least 15 minutes a day” on E-Discovery. He scolds, “If you know more about American Idol than the Federal Rules, Qualcomm, and Zubulake, then shame on you.” Sage advice, indeed.

As law schools begin to understand that E-Discovery is not an ephemeral trend in the law, but rather an essential part of law today, and as they take in the economic argument, they will also acknowledge that other law schools have lead the way and already offer semester long courses on E-Discovery. And, finally, on a practical note, law schools should take comfort in the readily available teaching materials-e.g., casebooks and practice books – that that would make it relatively easy to set up such a course.

I take the need to educate lawyers, especially young lawyers, to heart and, with great enthusiasm, accepted a lunch with the Deans of Suffolk Law School, my alma mater, to discuss this very subject.  I found the following materials to be very helpful in explaining the need for law schools to educate students on E-discovery:

1)  Ralph Losey’s Blog featuring guest article by William Hamilton “The E-Discovery Crisis: An Immediate Challenge to our Nation’s Law Schools.“

2)  The E-Discovery Course Descriptions from the University of Maryland School of Law, Georgetown Law, the University of Maine Law School, and George Mason University School of Law.

3)  Material from the Cowen group:  http://www.cowengroup.com.

4)  Ralph’s handbook for lawyers and Judge Sheindlin’s casebook:

•       Ralph Losey, E-Discovery: Current Trends and Cases (2008);

•       Hon. Shira Scheindlin, Prof. Dan Capra, The Sedona Conference, Electronic Discovery and Digital Evidence: Cases and Materials (2008).

[Incidentally, I reference Ralph’s book and blog quite frequently in my own practice and refer to it often. I have not yet received my copy of Electronic Discovery and Digital Evidence, but look forward to reading it and note its exceptional promise through its description.]

Going through the above list in order. First, Mr. Hamilton’s post explains how technology has transformed the way we practice law. Discovery can no longer be thought of as counsel exchanging dusty stacks of paper now that more than 90% of all information is created in electronic form (funny how that 90% also crops up in the relative total cost of litigation, as mentioned above – only “funny” not ha-ha funny). So while the way in which we regulate E-Discovery may shift and vary going forward, the practice, however, is here to stay. 

From the legislator’s perspective, electronic data was a legal minefield that was crying out for safeguards and regulations, hence the major reforms to the Federal Rules of Civil Procedure of December 1, 2006, and the more recent passing of Federal Evidence Rule 502 show. From the judicial side, the volume of cases on E-Discovery has mushroomed since 2006 – a clear signal from the courts that we’re not just dealing with the fleeting fancy of commercial litigators. And underlying all of this, is the economic reality that E-Discovery is a multi-billion dollar industry. This is not a gold rush or a dot.com bubble. So long as clients continue to store their information electronically – and indeed they will – lawyers must continue to find ways of accessing and managing that information for litigation purposes. Even the scholars have admitted E-Discovery into the ranks of respectable academic debate with more and more books being published and added to library shelves. 

Second, the syllabus and course descriptions demonstrate that teaching E-Discovery to law students is not a newfangled or harebrained scheme. Reputable law schools have already begun to teach E-Discovery to upper year law students as an advanced complement to the introductory course on civil procedure. 

Priding itself as a “cutting edge” course in law, the University of Maryland Law School offers a seminar called “Electronic Evidence and Discovery.” It aims to teach students about the variety of challenges E-discovery poses to lawyers in practice. How do lawyers manage ESI before litigation is anticipated? And when litigation is anticipated, how does that management change? How does counsel negotiate the exchange of ESI during discovery? How do they avoid waiver of privileges? And, how is ESI used at the end of road, in depositions or at trial? Maryland law students will explore these questions as they read the landmark cases and relevant rules on E-Discovery. Their fate in the course – their final grade – all depends on how well they can draft motions and supporting memoranda.

Georgetown’s course description doesn’t exhort students to hail technology and our computer age, but accepts E-Discovery as “commonplace,” as a matter of fact in the legal profession. The course focuses on procedure and on a rigorous examination of the Federal Rules of Civil Procedure. Beyond the black letter, Georgetown law students will confront the ethical conundrums that lawyers face in the area of electronic discovery. And, for the finale, all the theory will come into play as students learn how to use electronic evidence at trial.  

Some students may fear that you need to be computer smart to do well in a course on E-Discovery. Not true. Adjunct Professor Richard Kelsey’s course on E-Discovery at George Mason School of Law specifically advertises itself as requiring no technical background. His course is a practical course in civil procedure for students who want to be litigators in a world where most litigation doesn’t go to trial. He teaches students how electronic discovery and electronic evidence play out in the pre-trial setting by starting the course with a fictitious complaint to ending it with the students in a mock court.

Unlike the others, Joel Wuesthoff’s course on Digital Discovery & E-Evidence at the University of Maine School of Law lets students sit back and watch the nation’s E-discovery experts regale them with stories from the trenches. In addition to the practical insight they’ll glean from the guest lectures, the students will get up to speed with E-Discovery basics by reading the leading cases and the Federal Rules. They get to show off their stuff in the last class in a simulated Discovery conference.

And, of course, there is Mr. Hamilton’s exceptional course detailed in the aforementioned guest article on this very blog. 

Whether it’s a practical interactive course or a more traditional lecture, to stay current and competitive – and most important to equip students with the professional insight they need to succeed after graduation – law schools should add to their academic program specific courses, not just one-time seminars or CLE courses, related to E-Discovery.

Third, the Cowen Group has produced a variety of literature touting the economic rationale for learning about E-Discovery. While most law students don’t envision a career in litigation support or E-Discovery, they also don’t see themselves as joining a law firm, and that’s exactly where many of them end up. The reality is that law students will seek employment where employment exists. E-Discovery is now a billion dollar industry begging for professionals who are ambitious and skilled enough to confront the sophisticated new technology integral to almost any litigation. (Monica Bay, “Can you Adapt?” Law Technology News (June 2008)). Firms are recruiting attorneys who are comfortable with technology as they are few and far between. To succeed in law today, young attorneys should be prepared for the needed liaison and management required by E-Discovery, specifically, working with litigation technology professionals.

Fourth, teaching a new course on E-Discovery won’t force law professors to reinvent the wheel. We have books to follow, cases to interpret, and a cornucopia of commentary and blogs on the web to assist said professors. First and foremost, instructors might rely on Judge Scheindlin’s new casebook. The author of the landmark Zubulake opinions, Judge Scheindlin is an expert on issues related to E-Discovery. Her individual co-author, Professor Capra, has also earned his stripes in the E-Discovery world as the Reporter to the Advisory Committee on Evidence Rules and the principal author of Rule 502. In addition to their learned analysis of the leading cases, their casebook includes commentary and practical guidance from members of The Sedona Conference Working Group on Electronic Document Retention and Production. This casebook – a first in this area of law – pioneers the way for legal education on E-Discovery in this country. What’s more, students may have practical guidance from Ralph Losey’s imminently readable “train reading” worthy book, “e-Discovery: Current Trends and Cases.”  (and, p.s., I note Ralph does the lower case e-Discovery and I have gone on with the capitalized version, E-Discovery.  Who is right?)

So there you have it – the case for teaching E-Discovery in law schools from four different authorities.  The Deans of Suffolk Law were exceedingly receptive to educating law students and recognize that the information we discussed pertaining to E-Discovery is obviously germane to contemporary legal education and valuable to present and future law students.  Suffolk sees the importance of covering E-Discovery issues in the law school curriculum and is taking steps to make such a course offering available.  Will others follow suit?  I hope so.

This entry was posted on Sunday, November 23rd, 2008 at 8:21 am and is filed under Lawyers Duties, New Rules, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.