The heart of this week’s blog is a video of the first 8-minutes of a 2-hour lecture I gave recently on metrics and technology in e-discovery. I try to explain how numbers are your friend and can protect you from sanctions. The full lecture will be part of a new online e-discovery training program that I am building. I have been trying to get this idea off the ground with a large corporate sponsor for over a year now. It may finally come to fruition soon, along with several other career changes I am now going through. I will share more about all of this in a future blog.
As my regular readers by now know, I see three basic pillars to e-discovery: Teams, Cooperation and Metrics. Education is the heretofore silent fourth pillar of e-discovery, the one that is the cornerstone of the rest. Here are my four keys to successful e-discovery:
- Interdisciplinary Teams where IT, Law, and other disciplines work together on e-discovery challenges, speak a common language, and interact as a team with mutual respect, positive leadership, and goodwill.
- Cooperation on discovery issues with candor and fairness, using disclosure and transparency to avoid unnecessary technical disputes. This is the pole star of lawyer conduct in discovery, but must also include early judicial intervention if opposing counsel refuses to cooperate.
- Metrics and Advanced Technologies where estimation, math, measurements, quality control, and advanced technologies of all kinds, especially new search and review software and methods, are used to manage e-discovery and contain costs and risks. The video here begins to elaborate on this important topic.
- Education is the foundation of successful electronic discovery practice. E-discovery team members, lawyers, paralegals, techs managers, and others must all learn a core body of knowledge on this new area of law and IT. Competence is the key and competence comes through education. Education can take many forms, including organized training programs, CLEs, and the all-important school of hard knocks, better known as learning from your mistakes, a process not well-liked by lawyers’ clients. After a lot of thought, I have concluded that what e-discovery needs now is better education through online training. More on that in a later blog.
In the video below I start a lecture on how metrics and technology are an essential part of best practices today. Numbers and certain basic math functions, coupled by use of some of the advanced technologies now available in the field, can protect you from paying too much. It can also protect you from sanctions when a material mistake is made. In large projects mistakes of some sort are always made. The use of metrics to document and guide your efforts, and for quality control purposes, will allow you to prove that you made a reasonable effort. That is all the law requires: reasonable efforts, not perfection.
Metrics, Reasonability, and Judge Scheindlin’s Pension Committee
Many people are distorting Judge Scheindlin’s new Pension Committee case to make it seem like she is imposing a perfection standard in the preservation and collection of ESI. She is not. As I have explained before, this is a misreading of the case. The case does not stand for the proposition that if you make a mistake, you will be sanctioned. It stands for the proposition that if you fail to make reasonable efforts, and in those circumstances are grossly negligent, that is, you make a really bad mistake, then you may be sanctioned. Under my reading of Pension Committee, if you make a mistake, even a really bad mistake, but were making reasonable efforts to try to do things right, then you will not be sanctioned. Yes, I realize this may stand traditional paper-based notions of the law’s reasonable man on his head, and I wrote about this recently, but that is the reality of large-scale e-discovery today. ESI can still be lost, even when reasonable efforts are being made. Loss or destruction of ESI is no longer res ipsa loquitur proof of negligence.
The law requires reasonable efforts, nothing more, and nothing less. The amount and quality of efforts required for reasonability is, however, an evolving standard. Metrics and quality control are important elements in that evolving standard. See for instance the important Sedona Commentary that I have written about before entitled The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process. The Sedona Editors-in-Chief for this important 2009 publication are Jason R. Baron and Macyl A. Burke, assisted by Senior Contributing Editor, Thomas Y. Allman, and Executive Editors, Richard G. Braman and Kenneth J. Withers, with input from Members of Working Group 1. I highly recommend this Commentary to any of my readers/viewers. It provides the background for my own understanding of metrics and technology as the third pillar of e-discovery.
Metrics are important, and so to are interdisciplinary teams and cooperation. The cooperation pillar again has its home in Sedona, namely the Sedona Cooperation Proclamation and Richard Braman. See also my earlier blog: A Supreme Court Justice Writes the Preface to a Sedona Conference Journal on the Cooperation Proclamation.
I like to think that the first pillar, teams, has its home here on the e-DiscoveryTeam.com blog and its sister site FloridaLawFirm.com. I certainly don’t claim to have invented the idea, not sure who did, although it looks like Cisco was the first company to roll one out. But I have been relentless in its promotion over these past several years and will continue to do so for as long as necessary. Lawyers, talk to techs. Techs, talk to lawyers. You should both try to listen to and understand what the other has to say.
These three pillars are the foundation of my education program, and education is itself the fourth leg that makes it all possible, that allows for competent e-discovery practice. Education provides the stability that three legs alone can never provide. When lawyers, judges, paralegals, techs, and management all have a common body of knowledge and skill sets, the team can work efficiently and just results can be realized. With knowledge also comes the confidence and ability needed to cooperate. I am convinced that many lawyers don’t cooperate because they don’t know what is important and what isn’t. Education also brings the skills needed to create and use new methods and technologies, to use measurements, numbers, and methods. I am convinced that this is the best way to get out of the keyword search trap and the money-pit that is now e-discovery.