It is rare to see popular media use my name, Ralph. The last I recall is the famous Jackie Gleason character, Ralph Kramden. So when the new Disney movie, Wreck-It Ralph, came out staring a video game character named Ralph, I decided to embrace the questionable image of Ralph as a wrecker. This blog will list three things in e-discovery that I think should be wrecked, things that stand as obstructions to future progress.
There is too much distrust between attorneys when it comes to electronic discovery. Because of this lack of trust, there is lack of cooperation. Instead there is obstruction and needless bickering. It all flows out of lack of trust.
With a few rare exceptions, when, for example, opposing counsel is a known discovery predator, there is no good reason to automatically assume that the other side is trying to hide-the-ball. Certainly opposing counsel’s use of advanced technology should not, in itself, be a cause for distrust. I remember when I was the first lawyer to have a computer. Other lawyers did not distrust me because of that. Smile at my crazy hobby, perhaps. Ask me many questions. But not distrust me. Same comments apply to keyword search. Why this big distrust of today’s advanced software? Of predictive coding? There is no good reason, except perhaps the deterioration of civility in society as a whole. The law profession must not let the screaming heads on the media pollute our noble profession. Argue vigorously on legal points for sure, but then after the trial have a beer together and get to know your fellow lawyer.
In the old days of paper-only productions no one ever thought they had the right to audit the other side’s production. You trusted that they did their job, that the attorneys were fair and honest. You did not assume that they were trying to hide-the-ball as a matter of course. You did not ask for detailed disclosure from the responding party as to how they searched for paper records. You did not ask to be shown documents that were deemed irrelevant. Such requests would have been laughed at.
There was trust then, and should be now. Not trust and verify. The verify part, the tell me what you did part, only arose in the past if there was evidence of hide-the-ball, either intentionally, or by negligence. You did not just distrust lawyers automatically, or the opposing parties they represented, until you had some objective reason to do so. Now far too many lawyers think they have a right to audit before there is any cause to do so. They think they have a right to see samples of irrelevant documents. Where in the rules does it allow that? We need to wreck this kind of paranoia. We need to wreck these over-reaching, fear based demands for disclosure.
The rules of discovery are based on trust, and on imposition of sanctions by judges when that trust is betrayed. We need to wreck distrust. We need to go back to the rules. We need to go back to trust, and the kind of cooperation between parties that can only develop when there is a foundation of trust.
Law Firm’s Running Side-Businesses
Under the Guise of Litigation Support
Why are law firm’s running little e-discovery vendor operations under the guise of litigation support departments with their clients as captive customers? The core competence of lawyers and law firms is legal services. That is what they should stick to. Most law firms, and corporate law departments too, should wreck their litigation support departments. They should outsource almost everything thing they do to vendors who specialize in that kind of work. See: Losey, R., Five Reasons to Outsource Litigation Support (LTN, Nov. 2, 2012).
The processing of ESI, collection of ESI, creation and maintenance of ESI databases, software hosting of ESI, and technical support, are all non-legal business functions. They are highly technical and complex tasks. No one can argue that these are legal services, as the recent cases under Section 1920 for award of court costs show. Yet most large and even medium-sized law firms today think they can and should operate such a business. The law firm management apparently thinks it is just like making paper photocopies. They are wrong and this misapprehension should be wrecked.
Some think it is a good way to make money. Again wrong, and this notion should be wrecked. Think about the ethics of that? Think about the liability of running such a business with your clients – to whom you are a fiduciary – as your only customers, and captive customers at that.
Some think they have to use their own people do these technical services because no one else out there can do it right. Apparently, that was once true, many years ago. But not anymore and this notion too should be wrecked. There are plenty of good vendors out there who are as good, if not better, than your department. They are probably less expensive too. Afraid to lose institutional knowledge? The vendors you outsource to would probably be glad to hire your experienced people. Indeed, if outsourcing is done right, no one should lose a job. And it all stays in country. This outsourcing is only about outsourcing non-legal services from a law firm to a business who specializes in such services.
The fundamental notion, more like delusion, that all law firms are competent to run e-discovery business, should also be wrecked. Most (but, I concede, not all) are not competent to run any business, much less a complex, highly technical, capital-intensive business like non-legal e-discovery services. Most are providing their clients with second-class services, often at a higher price than most e-discovery vendors. Wreck it. Leave the non-legal services to vendors.
If you are the very rare firm that has a great little e-discovery operation set up in your law firm, well then, don’t wreck it, but get rid of it just the same. Spin it off to a separate for-profit business where it belongs. Then you will find out how good it really is.
Vendors Who Practice Law
Lest you think I am too vendor-friendly, there are many things about vendors I would like to wreck too. In addition to their Byzantine pricing structures, I would like to wreck their experts who go around practicing law without a license. Vendors who encroach on law firm turf, and provide legal services, should be wrecked, and wrecked hard.
Only practicing lawyers are permitted by law to provide legal advice. Vendors never can. They may have lawyers, they may even have the requisite legal expertise, but they are not law firms, and they cannot give legal advice. End of story. Some do anyway under the guise of providing technology advice, or educational information.
The line has become way too blurry. I want to wreck the blurry line. I want to make it a clear and bright line again. In the old days, when computer technology and software was young, IBM salesmen and women never gave legal advice. Not even close. Neither did Westlaw nor Lexis. The state Bars who regulate the Unauthorized Practice of Law (UPL) have become lax in the last ten years or so, especially when it comes to e-discovery vendors. After all, the vendors keep poaching law firm’s best and brightest in e-discovery. Many, if not most law firms today are adrift and in desperate need of good legal advice in this area. Naturally they turn to the vendors, as that is where the brainy lawyers are. But this has got to stop. It is unhealthy and wrong on so many levels. All of the good vendors know it and are trying to stop.
I applaud the recent activity of the DC Bar to take first steps to try to curb e-discovery vendor UPL. Doherty, D.C. Bar Calls Out E-Discovery Vendors in the District (LTN July 12, 2012). The unauthorized practice of law is a crime in most states. It is about time for vendors who cross that line to be prosecuted.
Still think I’m biased in favor of vendors? I am an equal opportunity wrecker. Law firms should outsource their business services to vendors, and vendors, in turn, should outsource their legal practice back to where it once belonged. Yes, we need to work together as a team, but each member needs to know their role.
Wreck-it Ralph caused havoc by changing games and trying to be what he was not. We need to learn from that and stick to our own games, stick to what we know and do best.
If you study any field of human endeavor you will see many things done wrong, things that you would like to change. Electronic discovery is no exception. This blog just happens to list three that are on my mind right now. In truth, these are not even my top three (although close). There are many more things in e-discovery that should be wrecked. Among them is the stubborn refusal of most attorneys to embrace e-discovery and buckle down and really learn how to do it. I am preaching to the choir here, I know, but I continue to be amazed at how many lawyers still see e-discovery as optional and pretend like doing paper discovery is enough.
I would also like to see traditional Go Fish keyword search negotiations wrecked. You should always test keywords before you use them, not just blindly guess. Yet this still goes on all across America in case after case. Linear review of documents is another thing I’d like to wreck.
Same goes for all of the myths out there about predictive coding, for instance:
- that it should only be used in the biggest cases or in certain kinds of cases;
- that it is a brand new technology and there is no proof that it works;
- that it is just based on a very big bag of words model that excludes semantic and grammatical analysis;
- that courts will not approve using it;
- that it is not defensible or at least hard to defend and will require an expensive Daubert hearing;
- that it misses hot docs;
- that it takes a long time to do;
- that it is expensive;
- that you have to give up your confidentiality rights to use it;
- that lawyer judgment is replaced by machine learning;
- that the computer is always right;
- that it is the only kind of search you need to do (mono-modal);
- that vendors do the search for you;
- that TREC Legal Track has established standards and best practices for predictive coding use;
- that you have to reach a certain recall level before you can say predictive coding has worked;
- that it is a defense trap, or a plaintiff’s trap, or the latest after EORHB, Inc., that it is a judge’s trap.
The list of predictive coding myths and misinformation goes on and on.
I’d also like to wreck the notion that the EDRM is the one and only viable model to understand e-discovery. I do not want to wreck EDRM itself, it is a great model and has its place, an important place. It is an especially good place to start. I just want to wreck the strange idea (not endorsed by EDRM itself), that it is the one and only model. In fact, I am actively working on wrecking this one by my creation of another model, one that tracks legal services only: EDBP.com, and does not include what vendors do.
Yes, back to that blurry line again that I would like to see made clear and bright. No more switching from game to game, which, in these now blurry days of e-discovery, is a real game-changer.