I thought I’d do something different this week and create a blog that polls readers on what they think about a variety of e-discovery topics. This way everyone gets to contribute to the content and we all get a sense of each other views and opinions on the hot issues of the day. You vote and then instantly see how other people voted. (Repeat voting is blocked.) It is simple and just takes a minute. If you don’t like the multiple choice answers I provided, you can even add your own answer in the “Other” category. Many will want to see these voting results. You are, after all, the elite of the e-discovery world. Your opinion is important to many people, including me, who are trying to understand what is going on in this rapidly changing world.
The Polling Is Secret
Although the stats are public, the individual votes are completely confidential. No one will ever know how you voted, or even if you voted, unless you leave a public comment. Even your custom “Other” answers are anonymous. You can also just be a free-loader, if you want, and take the information without contributing. But obviously we hope you will both give and take. The more people who participate, the more accurate the results.
As the administrator of the blog and polling I might be able to figure out who voted, and who didn’t, but I will not. I will, instead, always protect your anonymity. I promise you that. Moreover, unless you leave a public comment that identifies who you are, the names of my blog readers and blog subscribers are never shared with anyone. Also notice there is no advertizing on my blog. Never has been. If you want to support my educational activities, tell your friends about my online training program, e-Discovery Team Training. That does have a commercial free enterprise component. But not this blog.
Deep Throat Informants Are Safe Here
On the point of blog privacy, you should know that many people, maybe even some of your friends, frequently tell me things concerning e-discovery events that are not for publication. They don’t breach privilege, names are rarely mentioned, and, unlike Wikileaks, it is always a legal and ethical disclosure. This kind of background information is very helpful. Sometimes they tell me things for publication, but not attribution. This has been going on for years. I appreciate this very much as it helps me to understand and keep up. Rest assured, I will never reveal my sources. And like any real lawyer, my word is my bond.
Bloggers Are Journalists
Unless a blog is mere commercial speech, or is just an online message board, bloggers are journalists and as such their speech is entitled to the highest protections under U.S. law. The blogosphere is not a joke anymore, it is an essential part of mainstream media in the Internet Age. As the publisher and reporter of the e-Discovery Team blog I claim the rights of a journalist, not just a lawyer. For that reason I claim and assert Shield law protection, along with the highest First Amendment rights protection from forced disclosure of my sources, as well as legal protection from censorship and libel. Admittedly this claim is still somewhat controversial, and some courts are still struggling with the issue. See Bloggers after the Shield: Defining Journalism in Privilege Law, at 1 Journal of Media Law & Ethics 186 (2010); Blogger’s rights, Electronic Frontier Foundation (constantly updated); But see Too Much Media LLC v. Hale, 20 A.3d 364 (N.J. 2011). Information you provide to me in confidence as a journalist is safe from forced disclosure. The First Amendment has our back.
I am a big believer in the Constitution, to which, like all lawyers in the U.S., I have sworn a sacred oath to uphold and defend. A free press is essential to the American way of life. It has always been that way, going back to the many publications of our founding fathers, most of which were small self-publications like this blog.
Obviously I am also a big believer in confidentiality rights, as my publication of the guest blog article over the last two weeks shows, An Open Letter to the Judiciary – Can We Talk? So why don’t we start with that topic.
Confidentiality Orders
What do you think? Do you agree with the Anonymous Blogger? Should court’s adopt the proposal of the Anonymous Blogger? Should they routinely enter umbrella confidentiality protective orders during the discovery phase of a case when requested?
Let’s probe a little deeper on the subject of confidentiality. What about the public’s right to know about what goes on in the judicial branch of our government? Should the public have a right to see all information filed with a court? How about all information accepted into evidence in a case? Should a party who sues another give up their right to confidentiality of all information they have that is relevant to the law suit? Do they trade their privacy rights for the right to sue? What about the other side: does a person or corporation who happens to get sued by someone give up their right to confidentiality of all information that might be relevant to the law suit? Do they trade their privacy rights for the right to defend themselves? Speaking of that, should corporations and other entities have the same privacy rights as individual human beings? What do you think? The following polls are designed to probe your opinion of those issues.
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Privacy Rights
We have all heard of the large scope of privacy rights granted to employees in Europe. You cannot, for instance, discover their email unless they consent. This is derived from the very strong privacy rights granted to citizens in the constitutions of all countries in Europe, and in the EU charter. The tremendous importance Europe places on privacy is an out growth of the horrors of Nazi Germany and World War II. We all know that the American experience and law is quite different. As a result there are enormous cross-border difficulties in e-discovery.
We also know that computer databases and the Internet age in general have eroded personal privacy everywhere. We see this trend of erosion of all personal privacy rapidly accelerating with the popularity of social media. Have we gone too far, or is this much ado about nothing? What do you think?
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Certification
One of the hottest topics around these days is certification. As the publisher of the online e-Discovery Team Training program I get asked about this a lot. My program is all about in-depth education, from 75 to 300 hours worth, depending on how much of the supplemental homework you do. There is no certification per se. Although if you want to, and if you have completed all 84 classes, you can ask to take a law school type 3,000-word essay exam that tests your understanding of the materials studied. If you pass the exam, I’ll confirm in writing your passing grade. I do not certify competence in the field of e-discovery. I just certify that you took the training program and passed a test on it.
There are other programs that actually test for overall competence in the field of e-discovery and you can attend CLEs to prepare for the multiple choice exam. I think there is room for both approaches and it is all a matter of what you are looking for. I think the need for education is strong and don’t criticize an effort just because it is commercial. Others have been very critical of the certification approach, including Patrick Oot in his widely publicized article in LTN, where he referred to it as a sham exam. What do you think?
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New Rules
Another controversy these days is whether we need to amend the rules again? There is a big push to add a new rule on preservation, one that makes it clearer when the duty to preserve is triggered. I have written about this before in my blog One Man’s Trash is Another Man’s Evidence: Why We Don’t Need New Rules, We Need Understanding, Diligence, and Enforcement of Existing Rules. What do you think?
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Conclusion
Do you have suggestions for other polls and questions of interest to the e-discovery community? Send me an email and let me know. Also, do you like this polling format from time to time? Some of you may find them at least mildly interesting, some may not. What do you think?
I was irritated with Patrick Oots article because it was really addressing concerns that some attorneys may have regarding getting certification, and not every other person who is working in this field.
The balance of his comments related to a for profit company that set itself up very recently to capitalize on this developing area of law, and which very aggressively markets itself. By grouping that organization in with the few others that are better established and education based, he was insulting educators and mentors in this field that did not deserve to be painted with the same brush.
Certification is a marketing tool. This industry is too multi-disciplinary and fluid for static curricula / certification schemes to mean very much, but there is enough FUD that consumers will nevertheless over-rely on any “objective” standards they can find.
Learn the basics from the wealth of on-line resources available (like this blog and the innumerable CLEs and groups on Yahoo and Linkedin), ask a lot of questions, and verify vendor or candidate selections by calling references. Just like you would do for any other important decision.
“Certification is a marketing tool.”
And lawyers don’t market? Doctors? Accountants? C’mon, seriously? Seems the average jury-candidate-of-your-next-trial probably has seen ads on TV for law firms. Remember that nothing happens (in any professional-services business, and frequently among their CLIENTS) until somebody sells something.
“This industry is too multi-disciplinary and fluid for static curricula / certification schemes to mean very much…”
Gee, you mean, like STANDARDS OF CARE? Demands for FRCP amendments spelling out (in detail) what a “reasonable” litigation hold should contain & how it should be delivered and managed? Or, like limitations on the evidence a party is entitled to know about (much less, have delivered) despite the mountains of potential evidence in their adversary’s possession, custody and control?
Lawyers’ agita over e-Discovery is no more surprising, nor any less difficult to face, than precedents of information-management initiation suffered by CFO’s during Sarbanes-Oxley, or by COO’s during the race to maintain competitive parity with ERP-system implementations. They didn’t get a “bye from the teacher”, as some in the legal profession are demanding now. Lawyers should own the problem and address it thoughtfully. The chorus of “we don’t need no stinkin’ education” is just the latest plea for special handling, one in a long line since the 2006 amendments made horrible corporate information-management practices the LAWYERS’ problem. If you’re a corporate litigator, be thankful that you’ve been able to avoid it for so long.
If not for your writing this topic could be very cvonoleutd and oblique.
Yet again, I will say this- I can never get tired of reading postings by Professor Losey. I am so glad I am finally enrolled in his class. It takes about 2-6 hours to finish one module including reading all assignments, but at the end of the module, I feel so confident and proud of rationals behind understanding E-Discovery from legal point of view. Thanks again Professor Losey!