What is wrong with e-discovery in America is that too few lawyers know how to do it well, and too few care to learn. Of course, this means the glass is also half-full and that e-discovery is a new and growing field with great opportunities, especially for young tech-savvy lawyers.
Technology is Destroying Our System of Justice
The unprecedented advances in technology of the past few decades have unleashed a flood of information. The vast quantities of ESI have made it extremely difficult for litigants to find relevant evidence. The few gems of information that are important to a legal dispute are buried in a mountain of irrelevant, or marginally relevant information. This explosion in the quantity of potentially relevant documents has made it extremely difficult for all but a few highly trained specialists to find the key documents without breaking the bank. The truth may be out there, but if nobody can afford to find it, what good does it do?
Technology is Saving Our System of Justice
There is now more information available than at any time in history, including information essential to the resolution of legal disputes. This abundance of information makes it much more difficult for a litigant to lie and rewrite history so as to win a law suit. The few gems of information that are important to a legal dispute may be buried, but they exist, and can be found to help justice be done. There are trained specialists capable of finding these key documents in an efficient and economical manner. The truth is out there and can be found.
The Growth of e-Discovery Sanctions is a Bad Thing
All significant e-discovery projects involve some errors due to the volume and complexity of the process. Many projects not only involve mistakes, but outright negligence by the parties and their attorneys. Some e-discovery projects involve gross-negligence, bad faith, and even intentional misconduct, including the deliberate destruction or withholding of highly relevant evidence. Motions for sanctions based on spoliation and discovery misconduct are on the rise. This is placing significant new burdens on litigants, attorneys, and the courts. Some of the sanction motions are without merit. They are mere litigation tactics that needlessly drive up the costs of litigation and distract from the merits of the case.
The Growth of e-Discovery Sanctions is a Good Thing
The law requires reasonable efforts, not perfection, so the inevitable mistakes in every large e-discovery project are not a proper predicate for sanctions. Most e-discovery projects are not tainted by gross-negligence, bad faith, or intentional misconduct. They are conducted in good faith. When litigants or their attorneys do engage in bad faith conduct, including the deliberate destruction, or withholding, of highly relevant evidence, they are now much more likely to be caught. It is harder to get away with hide-the-ball conduct in the world of ESI than it was in the old world of paper discovery. Many motions for sanctions have merit and they succeed to punish and deter illegal discovery conduct. This helps keep the legal system clean and honest. It makes it less likely for one party or attorney to be punished for following the rules, when the other side does not, and gets away with it, thus providing the unethical party or attorney with an unfair advantage in the case.
e-Discovery Education is Inadequate
Most educational programs to teach attorneys how to practice e-discovery law are not provided, controlled, or even led by attorneys who actually practice law in e-discovery. They are instead provided by attorneys who have retired, or have withdrawn from legal practice to serve as consultants, work for vendors, or serve as judges. Many of these non-practicing attorneys, although well-educated, are out of touch with the everyday realities of practicing attorneys. Moreover, the CLEs’ sponsored by vendors, which is most of them, typically have a hidden, and sometimes not-so-hidden agenda, namely sales of their services or products and self-promotion. When practicing attorneys do get involved in e-discovery CLEs, the later motive is often controlling, and their expertise is frequently more marketing than real. They are seldom paid for their time. More often than not, they must pay their own expenses while vendors profit from their toil. When the practicing attorneys do have real knowledge, they often have little or no teaching experience or otherwise are unable to convey their message in a clear and engaging manner.
The academic community virtually ignores the subject, apparently out of traditional academic disdain for anything practical like discovery and because they do not know anything about the new topic. Courses on e-discovery are only offered by a handful of law schools, and they are typically just one or two credits in duration. They are often just an easy-A fluff course. No Ivey League schools even offer these token studies. When these short classes are offered by law schools, they are usually taught by amateur teachers, namely adjunct professors. They may have knowledge of the subject, but not of instruction or law students.
The inability of our past educational efforts to raise the competency of the Bar is prima facie evidence of its inadequacy.
e-Discovery Education is Excellent
There are more CLE type programs on topics of e-discovery than any other legal speciality in the country. Many of them free or at least partially subsidized by well-meaning vendors. There is also a wealth of free information available online on the subject, including in-depth articles, short summaries, news reports, and blogs. This includes my own modest contributions on case analysis and opinion. There are many good books and articles on the subject, both law review and trade press, by knowledgeable experts. Anyone who wants to study this subject will find a great abundance of written materials, not to mention a few free instructional videos.
There are also many dedicated legal and technology professionals who give freely of their time to help train the Bar on this new subject. A few inspired judges have been particularly active as thought leaders and provide a constant flow of helpful legal opinions and articles in this area. They are tireless in appearing at countless CLEs and other educational events around the country. A few successful retired attorneys also give freely of their time to help advance the legal profession that they love by contributing to the e-discovery movement. Many successful consultants and wealthy e-discovery vendors, in what is now a Five Billion Dollar a Year industry, also give back and devote substantial time and funding to educational efforts. A few bold law schools are also beginning to devote resources in this area, and some are offering substantial three-credit courses and even advanced seminars on e-discovery. Many practicing attorneys are also more than willing to appear and share what they know with their fellow attorneys. Most do so without compensation and even without reimbursement of their costs.
The problem of lawyer competency is a function of the rapid changes in technology, society, and the law, and the unbelievable explosion of information quantity and complexity. But for the prodigious education efforts of the past few years, the problem of lawyer competence in e-discovery would be far worse.