A recent blog post posed the question “Have we lost the war on eDiscovery?” The central point seemed to be that the eDiscovery community is more focused on ways to limit discovery than learn how to better preserve, collect and produce information. In addition, attorneys are putting discovery in the hands of vendors and specialists rather than educating themselves. There may be an eDiscovery War, but from my perspective, we are fighting on the same side. Speaking as a former litigator, and now having joined an eDiscovery service provider, I can see both perspectives. A trial lawyer’s instinct is to manage and control electronic evidence from start to finish (collection through trial and beyond). Even though I always knew there was an important role for service providers, when I worked in a law firm setting, I feared ceding too much control to vendors. Over the years, however, I have gained a better sense of how service providers contribute to the legal system and provide necessary technological expertise. There is no getting away from the real need for tech specialists to handle large volumes of data in a growing universe of data formats. (I don’t think I have been to a conference recently that isn’t addressing practical topics like Slack data or O365 data challenges.) As a result, we all must work together and appreciate our respective responsibilities.
eDiscovery service providers understand the importance of our role in improving the U.S. justice system. For starters, many of us are lawyers. We have worked at law firms, drafted discovery, taken and defended depositions, argued discovery motions, tried cases, and argued appeals. We retain our bar licenses and many of us give CLE presentations to attorneys on eDiscovery alongside our law firm and corporate colleagues. I take pride in the work we are doing to improve discovery and jury trials, and encourage our colleagues especially new entrants, to promote education and contribute to legal and technology discussions.
The review process, for example, relies heavily on input from service providers to offer critical guidance that assists attorneys in identifying the information that can be ignored and the most likely sources of the evidence they need. The combined expertise of technologists and review attorneys comes together during review. In fact, the professionals running these projects today might question whether we even need to discuss “a war on Discovery” and instead recommend a more forward-looking effort to implement technologies that have yet to bring their full potential to improving this critical phase of litigation. Having run document review teams for decades, I have always stressed the importance of review. The reality is one of our review team members will likely find critical documents that impact the strategy and direction in million- or billion-dollar cases. Now working as a service provider, I see that the hard work that goes into processing and hosting electronic evidence helps give attorneys and ultimately judges and juries and finders of fact more reliable and detailed evidence.
Still, the work comes at a price. Some limits on eDiscovery are necessary. I remember being able to accomplish targeted document and data collections without the sword of Damocles hanging over our heads (i.e., a double-edged sword of sanctions and excessive cost). Proportionality is a commonsense tool that helps us comply with Rule 1 and do our part to achieve “just, speedy and inexpensive” discovery, the same goal all of us share. But as my colleague points out, despite the 2015 Rule changes we still see cases where the approach is to “collect everything” and the full benefits of available technologies is overlooked under the pressures of time and the absence of tech expertise.
We advocate for eDiscovery competence for attorneys, but those with deep technology expertise must also be part of the process. Of course providing education, training and guidance ultimately plays the deciding role in exploiting technology to achieve the best result, better results than we could have achieved without technology.