Understanding technology and how to use it is growing increasingly critical to the effective operation of our legal system. Lawyers, bar associations and courts have already started adapting to this reality. In 2015, Chief Justice Roberts “recognize[ed] the evolving role of information technology in virtually every detail of life,” noting that the 2015 amendments to the Federal Rules of Civil Procedure marked the second time they were amended to address electronic evidence challenges in the Discovery process. The Federal Rules of Evidence have also been amended in the last few years as result of technology changes. Currently, more than 30 states have adopted the 2012 ABA Model Rule 1.1 making technological competence an ethical requirement for attorneys.
Technology has brought many benefits to the legal process. When managed well by the right experts, legal technology gives attorneys, judges, juries, investigators and regulators more detailed and verifiable information. This means litigants and their attorneys are more accountable and fact-finders are better equipped to find the truth. Conduct that breaks the law or entitles civil litigants to compensation or redress is more likely to be uncovered and “proved up” at trial. Unlawful and tortious actions are less likely to be swept under the carpet and missed. The process itself is more transparent as electronic data is identified and moved through the discovery process. This improves the legal system and levels the playing field for litigants seeking to resolve their disputes regardless of their resources.
When technology is misused, or its risks are overlooked, however, the results can be disastrous, expensive, and even embarrassing. For instance, the recent Mark Zuckerberg hearings were intended to address critical questions of data privacy and internet regulation. Unfortunately, the Senate question and answer sessions amounted to a giant missed opportunity for any real analysis of an incredible revelation regarding Facebook and Cambridge Analytica. The best thing to come out of the hearings may be CNET’s biting collection of clips highlighting the failure to formulate questions that evince the most basic understanding of social media and privacy issues. Similarly, during the recent Kavanaugh hearings, eDiscovery attorneys watched in frustration as Senator after Senator referred to “page” counts when they meant “documents.” None even dared inquire into any details about the “review” process at the center of the hearing preparations. eDiscovery attorneys and professionals face similar challenges when tasked with describing the process by which they identify, collect, analyze and produce electronic evidence to individuals who have little understanding of technology.
To address these challenges, most legal technology experts agree that more education is needed. However, one of the most difficult obstacles is the initial fear of technology or the sense that legal technology is something foreign and overly complex. As I often tell my colleagues, eDiscovery is not rocket science; it’s computer science. And if you break the topic down to its basic level, you find that the legal technology tools are designed by very smart developers to be operated not by computer experts, but by people with legal backgrounds.
The other major obstacle is that while technology has advanced, instead of simplifying eDiscovery, it has made it more complex. The real problem with teaching legal technology is that the functionality within the tools has become more and more specialized. For example, Relativity started out as a review platform that allowed attorneys to review data after it had been collected using forensics tools and “processed” by processing tools. Relativity now offers capabilities for collection, processing, review, and production. It has become a platform for analytics tools. It offers nine different expert certifications, each certification representing a different sub-process and area of expertise within the eDiscovery process.
I have now worked as a law firm eDiscovery partner and a consultant on the technology provider side for fifteen years (having spent the first ten years of my career as a trial attorney). The processes involved in moving data from a litigant’s data systems to a litigation-based data system, reviewing that data for responsiveness and privilege, and then producing the data to opposing litigants or investigators, has become more and more complicated because each step in the process has become increasingly specialized. Forensics experts, “processing” vendors, and attorney review teams have a complex array of tools to understand and workflows that best deploy those tools. With the emergence of advanced analytics and artificial intelligence, a growing consensus recognizes that legal and eDiscovery (human) expertise is more necessary than ever and that machines are not replacing humans, just making their jobs more technologically complex.
The need to understand legal technology is as critical today as it was when Judge Sheindlin wrote her law review article coining the term ESI in the Boston College Law Review in 2003. Education remains the best way to increase the level of technology expertise for attorneys and legal professionals. The key is providing education that breaks the topics down and explains them using language that people with legal training can understand. After all, it’s not rocket science.
CDS offers CLEs on a wide range of eDiscovery topics. Please contact us today if your firm would like to expand their knowledge in this space.