The e-discovery version of the Tonight Show with dueling hosts Browning Marean and Thomas J. O’Connor is the visual theme for my blog this week. Browning, the head of DLA Piper’s e-discovery practice group, plays the role of Jay Leno, and, of course, O’Connor, the Director of the Legal Electronic Document Institute, plays Conan O’Brien. My role is the stammering stand by guest and sometimes also the Office Space employee, Milton Waddams.
Yes, this means I have submitted to yet another e-discovery talk show interview. Who knew there were so many? Browning and Tom are well known experts in keeping e-discovery entertaining. Since they have both run out of things to say on their own, they now go around interviewing all of the e-discovery nerds in the known universe. Having by now already talked to all of the really important people, or been turned down (the vast majority), they finally got around to me, something of a low point. But not to worry, next week they have a really good show lined up – an interview with Laura Zubulake’s cat!
They call these audio webcasts the e-Discovery Zone, no doubt because their guests feel like they’ve wandered into the Twilight Zone. This questionable enterprise is sponsored by Techlaw Solutions, although I have no idea why. We had a good time talking, so this interview went on for more than a hour. If you are a real glutton for punishment, go here to listen to the full audio, streamed or downloaded. Alternatively, read on for what I think are the best parts, which, of course, means the drastically shortened and edited parts that make me look good. Also, as I have done before in such interviews, most famously in the brutal Mark Mack interview, I once again share a few of my <Secret Thoughts> to try to make the reading slightly less boring.
The Ratio of People to Cake is Too Big
O’CONNOR: Hello and welcome to the latest edition of the E-Discovery Zone. This is Tom O’Connor along with Browning Marean of DLA Piper and a very special guest today, Ralph Losey of Akerman Senterfitt. Many of you probably read Ralph’s blog or have seen him speaking so we’re very, very pleased to have him today. Welcome, Ralph.
LOSEY: My pleasure to be here. You two are my favorite guys, so this should be a lot of fun. <Secret Thought: I was promised a piece of cake, and “the last time I didn’t receive a piece. And I was told…”>
O’CONNOR: Great. Well, I’d like to start talking right away about your blog. As we were recounting offline before we started here, I just came out of a hearing that involved someone who didn’t seem to have a great grasp of obligations under the federal Rules, specifically regarding litigation holds in preserving data. And Ralph, you just had a post that you wrote earlier this week specifically about the ethical obligation to know about e-discovery. So I’d really like to have you talk about that a little bit because it’s just so fresh in my mind.
LOSEY: Some people think maybe I’m exaggerating when I say that the problem of competence is reaching a near ethical crisis level. But what you were describing earlier Tom, which we can’t really talk about because it’s a pending matter, just confirms it. Those of us who are in the field dealing with these issues every day know all to well that there’s just a huge lack of information and training by many of the attorneys that are specializing in trial work and dispute resolution. They are still pretending like they’re living in a paper world and they’re not getting any training in law school on this except for a very few schools, maybe 5%. I’m proud to be part of that 5% that is teaching it in law school. <Go Gators!> But in most schools they’re not getting the training. If they’re learning anything about e-discovery, it’s from their own law firms. Most law firms are not the size of Browning’s and mine and they don’t really have the resources or training to teach it. <Blind leading the blind.> So, it’s a matter of lawyers learning on the job or maybe by catching a one-hour CLE.
The bottom line is, the training is insufficient. For this reason attorneys are not doing a competent job and not fulfilling that very important dictate – an ethical dictate – to perform their job with reasonable competence. They are also failing in their duty to be diligent because they really don’t know what to do to be diligent. I think it’s become, at this point, a serious problem. …
MAREAN: You know, Ralph, I hearken back to Legal Tech and Judge Facciola’s extraordinary keynote on the third day, and was struck by the passion that he demonstrated in that keynote, again, talking about attorney competence. I was thinking somewhat about, you know, how do we effect change in the legal profession? And sometimes it’s a carrot and sometimes it’s a stick. What I’m wondering is, whether or not malpractice insurers are going to perhaps use a stick of premium and really start to do underwriting due diligence on a law firms’ ability to do electronic discovery. It seems to me that there is going to be the possibility of malpractice suits arising where outside counsel or inside counsel – but again from our standpoint, outside counsel – are held to malpractice cases. I don’t know whether that is something that’s going to change the profession or not. …
No Shortcuts To Competence
O’CONNOR: How do we solve this? I mean, I’m always astonished. It seems like there is just a plethora of webinars and conferences and articles. It astonishes me that people don’t know some of the basics about e-discovery because it seems like there’s educational opportunities everywhere. So how do we solve this problem?
LOSEY: Well I’ve been thinking about this a lot and talking about it. I know I haven’t been talking about it for as long as you two. <Who has? I mean you two guys are really old!> But I’ve been writing about it quite a bit lately and the answer is education, but a different kind of education. We’ve got to do things differently than we’ve been doing it because it’s not working. <The flood of technology and information is moving far faster than the current lame CLEs being offered.> There’s the ever-increasing volume of information and ever-increasing complexity of the systems and information, so that, you know, a year ago we weren’t worried about Twitter – that wasn’t part of the scene. Now it’s taken off. Two years ago you really weren’t worried so much about social networking. Now that’s really exploding, such that every housewife pretty much has it and every employee has it. The systems just keep getting more and more complicated – mergers and acquisitions. Your average company now is just a patchwork of IT systems that are hard for the specialist to understand, much less a general attorney to come in and understand. So, I think we’re losing the battle.
We’ve got to start thinking out of the box <Oh brother, did I really just say that?> and come up with different solutions to what we have been offering so far, the CLE for an hour, or even the day-long CLE. I think Georgetown is an example of taking the lead to go into the one week intensive program, which I had the opportunity to participate in. I think it was just February of this year where it was eight hours a day, every day, and then the fifth day I had the opportunity to be a tester. So I spent all day long – me and Ann Kershaw and Sherry Harris – we divided up into three groups, and we tested these folks to see how much they learned. They did pretty good, really.
O’CONNOR: Not to, you know, cast any aspersions on what they were doing, but at 50 people at a time, we’re going to need 10 of those a year, right?
LOSEY: Well, yeah. <There goes your invitation to Georgetown.>
O’CONNOR: The law schools seem to be the answer.
LOSEY: It wasn’t cheap and it was limited. It was deliberately capped at I think 40 or 50, as are the classes that Bill Hamilton and I teach at the University of Florida. We capped ‘em at 40 and we turned away students, and it filled up within an hour because the students get it. They see an opportunity here to use their skills, and in today’s marketplace, any edge you can get to help you to get a job, or get ahead if you have a job, is something they’re looking for.
Maybe a fringe benefit of this recession/depression we’re suffering through is that people are now going to be more motivated to take the time to really dig deep and start learning this. Frankly, some students don’t have a job, some attorneys are out of work. <We are all turning into Milton Waddams, the character in the Office Space movie, fearing another downsize move to the office in the basement.> They’re going to have the time to do it, time that they might not have had in a better economy.
O’CONNOR: Browning, you mentioned Judge Facciola, I know during that – I attended that same presentation, and he gave a not so thinly veiled reference to perhaps we need to have some sort of testing requirement. He seemed to, as I recall, say that he didn’t feel the law schools were really picking up the slack the way they should.
MAREAN: Well, you know, I wonder – Ralph and I had the privilege of attending the Second International Litigation Support Conference, I think, in Washington a week or so ago, and one of the things that struck me there is that law firms, to the extent that they have litigation support groups within the law firm, that in fact that is the source of the most practical knowledge for dealing with e-discovery issues. They, in fact, get it and can be of tremendous help in guiding the attorneys, if the attorneys will turn to them in a timely fashion, to deal with such things that lawyers aren’t very well equipped to deal with – such as form or forms of production. …
O’CONNOR: And so given all that – and I guess this comes back to the point I raised earlier – we seem to have a number of resources out there. Why do we still have, as Ralph said, this critical mass of folks who are ignorant? And as I recall Judge Facciola saying, it is not because they’re not intelligent, it’s because they’re – I believe the word he used was – obstinate. They’re simply not availing themselves of these resources.
LOSEY: A lot of it has to do with who does the law attract, what kind of person is screened in the LSATs, the admissions. We’re not attracting people that are oriented to computers. Math and science majors typically don’t go to law school. They go to med school or they go to engineering school. That’s part of it. Law schools need to change their admission and, number one, they need to start teaching it. I mean, University of Florida, Georgetown – these are rare exceptions. Even Georgetown only teaches it once a year. University of Florida, at least, we’re teaching it every semester now.
MAREAN: Ralph, tell us a little bit – I know you and Bill Hamilton are involved down in Florida – tell us a little bit about that curriculum, what kind of a curriculum have you put together and the like.
LOSEY: … There is competency testing in law school. That’s the beauty of it. The final exam I gave them was pretty darn hard. As a matter of fact, it was only slightly simpler than the exam I dreamed up for the Georgetown experts who were, you know, some of them 10, 20, 30 year lawyers. It was basically the same test, a little less complicated, and they had just three hours to write the answer out. We tested the full EDRM model, one through nine. They actually started on two, identification, preservation, collection – those first three, and then our last question was on what we’ve learned from this fact scenario. How would you recommend that the IT and Information Management Systems be redesigned? These were challenging questions, that I am sure 95% of the litigation attorneys in America wouldn’t know how to answer correctly. I can tell you that all of the student answers were good. Some of the answers were fantastic! <The Book Award for best student this semester was awarded to two students: Jason Pill and Johann Van Lierop. Congratulations!> …
These are all smart people. They respond to training. But this is intensive training – I estimate it would take 200-250 hours over our 4½ month semester of study and work to get to this point. Two hundred and fifty hours, okay, in a four month period. This is not happening in the CLE programs. We’re not getting that kind of commitment and intensity, and so we’re getting superficial learning. And to be honest – because, you know, I’m not connected with any vendor so I can be a little controversial – most of the CLEs I see that are vendor-sponsored, they’re “scare you into hiring us” type CLEs. <The “pay to play” type CLEs are even worse. No bona fide subject matter expert ever pays to teach. The ones you see at these events are mostly just salesman trying to hustle in-house counsel. They know enough to be dangerous and make a boring speech.> Lawyers are getting sick of that. Lawyers tell me, “I’m tired of these e-discovery CLEs. I don’t learn anything practical. I just learn that I don’t know what the hell I’m doing and I should be scared.” Of course, what they would like is a magic pill to easily learn all of the practical stuff. That’s the first problem. There is no shortcut. It takes time and effort and practice and more practice.
MAREAN: Well your comment reminds me of Malcolm Gladwell’s Outliers book which I’ve picked up and I’ve only read some reviews of, but where he talks about what does it take for some people to be successful. <He’s talking about my article.> I think he was using Joe Flom at the Skadden Arps firm that, you know, how many hours does it take to become an expert? And I do agree, I think that we absolutely need to be spending a lot more time. But Ralph, to your earlier point, I think this is a wonderful opportunity for somebody coming into a firm to really spend the time and become the go-to person in this area. Talk about making yourself valuable to the firm even at a young age, to me it’s one of the most obvious routes open today.
LOSEY: It really is. It’s a great opportunity. I’m finding that the young people get it much quicker. They already know all the basics that you and I know because we’ve been doing it for years, but that a lot of people our age don’t. So, it’s a quicker learn for them. It still takes 200-250 hours to get the basics. Malcolm Gladwell cited the scientific studies that weren’t about getting the basics, they were about attaining a level of mastery where you really could teach this stuff. They found it takes 10,000 hours. That’s five years, maybe 10 years, depending on how much time you devote to it. So it takes a lot of time. How many masters of discovery are there really that can teach this stuff? And so, that’s the problem. We’ve got to – everybody’s got to raise their game up. Those of us that know something need to be sure that we’re doing legitimate education and we’re really helping the rest of The Bar, our brothers and sisters that are struggling with this, to really understand it. That’s the solution. It’s not, well, you need to understand enough to know you’ll never learn how to do this crap so you better hire us, which unfortunately is a lot of what goes on. We don’t do that, but we’ve all seen it done. …
Judges Are Smart
O’CONNOR: That does make an interesting point, thought, Browning which is, if we don’t think the attorneys are being educated, are the judges being educated?
MAREAN: Well I pick up on Ralph’s point and Ralph, I think that Bray & Gillespie case was out of the federal Court in Orlando, and I was struck by the thoughtfulness of the magistrate judge in that opinion which, by the way, really does loop back to issues of competence and sort of getting with the program of discovery, but I found her opinion – and I was really not familiar with that magistrate judge before, but I thought she put out a very thoughtful opinion.
LOSEY: Well yes, I know Judge Karla Spaulding pretty well. I have been practicing here my whole career and Judge Spaulding has been here a long time. She is not a computer hobbyist like me, she’s not a techie, but she’s a smart person – all the federal judges are smart. And she is very diligent. She just dug in there and worked very hard, had two evidentiary hearings to get to the bottom of things when she saw the smokescreens and the lawyers saying different things. She really worked hard. And it shows that if you’re diligent and put in an enormous – I have no idea how many hours that she and her team of law clerks put into it, but I’m sure it was very substantial. Not many judges will take the time to do that.
We can’t expect to find hero judges like that willing to do it all the time. But it does show that people of above average intelligence, which all of our federal judges are like that, can sort through it and figure it out. They can hear expert testimony on both sides and figure it out. But the truth is, most judges don’t have the time necessary to dig into it like that, or maybe they just don’t have the inclination to do it, in which case I think the solution is a special master. I really think that’s part of the answer, if the parties are in a difficult situation and the magistrate may not be willing or able to take the time to do that, or it may take them a year to do that, then the parties ought to consider agreeing upon a special master that has particular training and expertise in the area of e-discovery and come up with a quicker, possibly more just ruling for them. …
Crystal Ball Gazing Five Years Into The Future
MAREAN: Well Ralph, let’s assume that we’re now five years hence, it’s May 21st, 2014, what do you see will have changed in the next five years?
LOSEY: I think I’ve lost some weight and am in better condition.
MAREAN: A consummation devoutly to be wished.
LOSEY: Yeah but I’m an optimist. No, I think what’s going to happen is, we’re going to see some big players come in. Somebody’s going to step up to the plate and we’re going to get some real intensive training. We’re going to get competency certification, and I doubt it will be the local Bars because they just take too long. Most state Bars do have certification programs in different areas, but it’s going to take, I think, longer than five years. … I don’t think we’ll be there yet with certification from the state Bars. What do you think Marean?
MAREAN: I think they’re going to view it as too narrow and not really pick up on Judge Scheindlin’s comment that it’s not just “e-discovery,” it’s now just “discovery.”
LOSEY: I think Judge Scheindlin’s remark has been fairly criticized. I don’t know, maybe it was you Tom who pointed out that it is not “discovery” because they’re still depositions, there’s interrogatories, you know, there’s some stuff. But it is, I think, document discovery or better said discovery of writings, which has always been critical to the outcome of most civil cases. What were the parties writing? E-discovery is really discovery of writings because there’s so few paper writings – original paper writings – nowadays that you might as well discount them as of marginal importance. The discovery of writings today is what e-discovery is all about. Any lawyer who has a case where what the people wrote is important needs to know e-discovery.
They need to know on a couple of levels: there’s a base competency level, that they need to learn to handle the small cases; and, then there’s more advanced for the bigger and more complicated cases. I think we’re going to have to see training, better training and certification on these two levels. I don’t think it will come from the state Bars, and I also don’t think the law schools will move that quick, although we’re going to see some leaders and schools like Georgetown that are figuring out that this is very good. We’re going to get more schools, but will Harvard be offering e-discovery in five years? Maybe that will be the time they first offer it, I guess, Harvard and Yale, and the other top 25. It will probably take them that long before they hold their noses and deal with something so practical and narrow, but that’s the attitude you’re getting from academia. So the solution is not from the Bar, it’s not from academia, I don’t think, with all due respect to Kroll, that their two-day certification program is really what we’re talking about here either, so I’m not sure a vendor is going to do it, but I think somebody needs to. …
So that’s the training part of it. The other thing we’re going to see in five years, though, to change the subject a little bit, is we’re going to see improved software. I don’t think we’ll have the magic button yet, but I’ve been talking to vendors a lot, I know you guys talk to vendors a lot too, and I said, you know, I want to see the random button on your software henceforth. It’s not there yet. But in five years every program is going to have a random button where you do random sampling. Random sampling is going to be commonplace instead of “Wow, that’s such an exotic idea,” which, believe it or not, is the reaction today of most vendors. In five years it’s going to be common. Also, in five years it’s going to be the exception, rather than the rule, to negotiate key words in the blind and then run them. I think in five years we can hope the Bar will get away from that and we will have testing and sampling as part of everybody’s normal way of search. …
O’CONNOR: Right. Well we’re starting to run out of time here. Any last thoughts or topics that either of you would like to cover?
LOSEY: There’s one thing we haven’t mentioned and it goes to Browning’s excellent five-year question, and that is, I’m hoping that in five years the Sedona Cooperation Proclamation is going to be not only widely known, but followed. Again, it’s going to come out of money concerns, cost driven; the clients are going to stop paying lawyers just to jerk around with hide the ball. They’re only going to pay them to argue over the merits of the case and argue over the legal implication of the facts, and not argue over whether they should get the facts or not. I think we’re going to see, out of necessity, lawyers being more cooperative in the area of discovery,including e-discovery. So this may be a hope more than a prediction but, you know, I’ll go out on a limb. It’s a prediction. It’s not just a hope because we cannot afford business as usual in discovery.
MAREAN: Well absolutely. I’m in to that and I think getting attorneys to read 26(G) and most states courts or most states have similar type rules about what it means when we sign our name to a pleading and what that certification carries with it. I think putting teeth into 26(G) – the tool is there. The interesting thing will be whether or not the judiciary decides to give it the emphasis that I think it needs.
LOSEY: You’re right. We’re full circle back to the ethics, which is so important. It’s competence and also cooperation – just following the rules. Federal Procedure Rule number one: quick, speedy, inexpensive, just adjudication. We’ve got to get back to that, otherwise we’re going to have people fleeing the public justice system into the private system of arbitration. Judge Facciola is very concerned about that. I am too. I like public adjudication. I would rather not see everything go into private arbitration, although there’s a place for that, and that means we’ve got to have discovery of all kinds be affordable.
O’CONNOR: Right. Well as always, Ralph, it’s great speaking with you and hearing your thoughts. Once again, I want to recommend to everybody that they take a look at Ralph’s blog, the e-Discovery Team …
LOSEY: I hate to interrupt somebody endorsing me <Boy am I stupid or what?>, but while you’re at it, check out the HASH article because I know that’s something Tom and Browning – the three of us are really big advocates of, using the HASH algorithm instead of Bates numbers. We can’t go through an interview together, guys, without at least saying the HASH word once.
O’CONNOR: Stop using your Bates stamper. Browning, do you still have the old Bates stamp machine in your desk?
MAREAN: I do indeed, and people will come in and say, “What’s that?”