Judge Grimm’s New Discovery Order Is Now An e-Discovery Best Practice – Part One

Judge Paul Grimm’s new Discovery Order, which, to my knowledge, he now enters in every medium or large size case before him in District Court in Maryland, has just been included in Electronic Discovery Best Practices (found at EDBP.com). The assimilation of his order into EDBP was fairly easy because Judge Grimm’s Order reaffirms all of his many prior teachings and articles, and that of other e-discovery leaders. These ideas were already included in the EDBP, including the all important Cooperation activity that makes up the core of Judge Grimm’s order. Still, his order adds more details, and a few specific requirements that are new and good. I urge all judges, state and federal, to adopt a discovery order like Judge Grimm’s. That would help advance the cause of attorney adoption of best practices. It would also help judges’ dockets flow more smoothly and with less e-discovery hassles.

Legal Best Practices and Discovery 3.0

This article will conclude with a summary of the key requirements of Judge Grimm’s standing order. Still, you should read it in full here, and also look at the larger EDBP site to see how Grimm’s Order has been incorporated into the larger matrix. EDBP is a model of legal services that attorneys provide to clients, not of vendor services or lit-support services, which is pretty much the same thing. For that reason it contains many unique characteristics not included in the better known EDRM, including Cooperation. If you are a lawyer, you should know about the best practices collected at EDBP. If you are a vendor serving lawyers, not just other vendors and lit-support departments, you should know about it too.

This point concerning the orientation of the EDRM model was made in an interesting article recently, which suggested that vendors are wasting their time modeling new services around the vendor EDRM, and what vendors do, instead of modeling their new products on what lawyers do. Abandoning the EDRM assembly line: a legal-regulatory technology market ripe for change. The authors, David Horrigan and Alan Pelz-Sharpe of 451 Research, suggest a new law firm services oriented model, that is interesting, but still has nothing to do with e-discovery legal services. Also see Pelz-Sharpe’s Is EDRM a Jack-of-All-Trades and Master of None? published this week in Law Technology News where he criticizes the EDRM for being a work flow model, not a business model. This is, I think, an unfair criticism of the EDRM, which was always intended as a process model. It is like criticizing a horse for not being a camel. Criticism might be fairly leveled against vendors who try to turn the EDRM into a business model, but not against EDRM itself. It is what it is, and does it very well.

By the way, I congratulate the EDRM for making the move to go to non-profit status in 2014, much like my son, Adam Losey, and I did when we formed IT-Lex.org last year as a 501(c)(3) charitable organization for legal education. See George Socha’s article in LTN’s, EDRM Transitions to Nonprofit Status. For the record, my blog is free and non-profit, so is the EDBP.com, IT-Lex.org, and FloridaLawFirm.com. My only for profit activities are the online legal training program, e-DiscoveryTeamTraining.com, which has a modest charge for enrollment in the 75 hour program, and, of course, my legal services.

The new model proposed by 451 Research to replace the EDRM includes such things as document and matter management, legal research, and time and billing activities. They call it the Legal 3.0 approach. In the words of Horrigan and Pelz-Sharpe:

The concept of Legal 3.0 is based on the idea that the traditional, unautomated practice of law was Legal 1.0. Recent efforts to combine the attorney-driven right side of the EDRM with the technologist-driven tasks of the left side of the EDRM was Legal 2.0, and creating legal technology platforms based on legal – rather than technological – tasks is Legal 3.0.

They created this diagram to summarize their proposal.

The 451 Research Law 3.0 model is interesting for legal practice as a whole, but not for discovery. It certainly does not displace the EDRM, nor the EDBP. Indeed, the EDRM remains the only model of what vendors and tech-support departments do, and the EDBP the only model describing legal services in e-discovery and the best practices for these services. If you are a lawyer practicing in the field of electronic discovery law, you are invited to participate in Electronic Discovery Best Practices. You are also invited to submit new proposals for best practices, or critique the ones we have.

My Invitation to Vendors

Vendors are invited to design new products that assist lawyers in the legal services modeled in Electronic Discovery Best Practices. For instance, my wish list includes new technological tools that will assist lawyers in the all-important activity of Cooperation. Lawyers need help on this, believe me. Standing orders, Proclamations and skilled mediators are not enough. When new discovery Cooperation enhancing tools are developed by smart vendors, they will have social media components for sure, and will include many levels of transparency. They will probably dovetail with existing review tools, and production tools, and privacy encryption tools. They will also likely do completely new things, like put objective metrics on case valuation for proportionality purposes (and settlement). They will also help in predictive coding by making secure, limited disclosures of the grey-area-only documents in training sets, or sample testing sets. They could also help in protecting client’s legitimate expectations of privacy.

I have more ideas on how new technologies can help meet the needs of tomorrow’s litigators. I am happy to brainstorm with serious developers and inventors, but please remember that my time is very limited and my only real commodity. Vendors and entrepreneurs, contact me if you want to discuss this further, or otherwise have new products for what I would call, Discovery 3.0, as opposed to 451’s Law 3.0.

Tell me how your new products and new ideas fit into the EDBP diagram, and what we lawyers do, and please, stop all this talk about left and right sides of the EDRM, as if that meant much to practicing attorneys. Save it for the lit-support people. They still love it. Talk to attorneys about litigation readiness, about cooperation, about evidence, about settlement. Talk to us about what we do, about legal services, and how you can help us provide those legal services. And please remember, we provide these legal services, not you. The fact remains that only lawyers and law firms are permitted to provide legal services, which some vendors find an inconvenient truth and try to circumvent. They capitalize on lawyer incompetence, and do their work for them, instead of assist. These UPL-happy vendors have to date enjoyed some success, but in the long run they will surely fail.

So please vendors do not just talk to us about what you do, and what law firm lit-support departments do, and how you can help them in non-legal services. It is interesting and all, no doubt, especially for lawyers who do not already know what you do. I found it interesting in the past, much more so than most lawyers, because, I am, after all, a technologist too. But, at this point, I have heard it all before, constantly since 2005 when the EDRM started, and now I’ve moved on. Vendors, if you want to continue to prosper and serve the legal market, then you should move on too. Learn the EDBP workflow of legal services and start thinking about how you can assist practicing attorneys in their work. That is my vision of Discovery 3.0.

To be continued . . .