For reasons I don’t quite understand, eDiscovery is still scary to many lawyers. After years of working with a variety of attorneys across the country, I believe that the core reason is that eDiscovery seems to consist of complex technology that is outside the area of comfort for many attorneys. But the reality of the situation is that no one; not the courts nor your clients are asking you to become eDiscovery experts, nor to understand all the science behind the available tools. But they are asking, and even beginning to require, technological competence by their legal representation. I previously wrote on the requirements of Technological Competence. This post is an extension of that concept.
Why is Discovery scary? Primarily because Discovery today is mostly eDiscovery, and if you don’t at least understand the basic principles involved in capture, culling, searching and review of electronic data, you are not offering effective representation. While you can rely heavily on litigation technology staff or outside vendors to handle the true details of the technology, you have to realize that they are generally NOT attorneys. This means that they may not think like attorneys nor can they be held responsible for making true litigation decisions. After all, you are the one with the license to practice law.
Rethinking the eDiscovery Process
No long ago, Discovery was put off until very late in the litigation cycle to save time and money. But with the advent of eDiscovery and the availability of information much earlier in the litigation cycle, and changes in the Federal Rules of Civil Procedure and equivalent state rules, lawyers need to become involved early on in the eDiscovery process. Data evaluation should be occurring in advance of the Meet and Confer so that you can represent your client and plan the correct litigation strategy. This can’t occur if you stay outside the process.
This is by no means an attempt to discount the importance of litigation support staff. In fact, without them, nothing would ever be done. But relying exclusively on staff to direct all facets of eDiscovery, without giving them the legal tools and case knowledge of the attorney is like asking them to fly blind. It is not unheard of for litigation support or vendors to be told to manage the data and get it set up for review and sometimes even perform a first pass review without being fully informed about the litigation. If they have not been told the details of the causes of action, what evidence is needed to support your position or what facts are at your disposal, can you really expect them to identify the key documents that you need? You have handicapped them before the project even begins.
Without the proper background and knowledge even the best staff will not totally succeed in data review. Context is important for everyone and therefore the best case outcomes are the result of a constant flow of information between attorneys and staff, increasing basic knowledge as the case progresses. How successful could a first pass review be if reviewers don’t understand that while an email is not relevant to the core question, it may well be relevant to a new cause of action or trigger the need for a second document request? These are legal decisions that must ultimately be made by attorneys. If you are not a constant participant during the review process, these documents will not be brought to you attention and your client representation may be negatively impacted.
The Impact of eDiscovery Tools
eDiscovery tools include things such as:
- Advanced Culling
- Predictive Coding
- Concept Search
- Keyword Search
- Social Networks
- Advanced Analytics
You don’t need to become an expert in how each of these tools will benefit your litigation, but you certainly need to understand the basic concepts and how each one can be implemented. Perhaps most importantly, these tools require that lawyers with specific case knowledge be involved in their effective deployment. A technology tool is only as good as the people that use them and understand how to interpret the results. Effective results can only occur when there is a constant use of People, Process and Technology. And senior level attorney involvement is a key factor. The team members all need the same level of knowledge to decide what is needed; what and how information should be collected, how to review it and what determines relevancy. If you do not possess the eDiscovery knowledge in house, then the time to get outside counsel is at the beginning of the case.
The Increased Role of Early Case Assessment (ECA)
eDiscovery technology can and should be used to gain early insight into your case. Early Case Assessment allows you to learn details about the case; create more focused discovery questions for the Meet and Confer, design a better, more cost-effective case strategy for your client and gain access to the information early on in the case by reviewing analytics regarding the data.
The only way to truly understand the advantages of ECA is to devote time to the process. A few hours or days early in the process will continue to return benefits throughout the case. Attorneys need to sit down with the litigation support team and really look at the data. You don’t have to learn to run the tools, but you need to look at the results, discuss your goals and needs and ask questions. Together you should be able to filter and cull out large amounts of data before the documents are loaded into a review platform. And perhaps most importantly, you will gain early case knowledge and your staff will better understand the needs of the case. Reviewing less “junk” and focusing your attention on important data will result in better, more cost effective representation.
Understanding the steps of eDiscovery and the advanced tools that can be applied to large data sets is virtually required in today’s litigation (in over 26 states, eDiscovery competence is now required). Even if it is not required in your jurisdiction, you will be a better attorney able to represent your clients better and more cost effectively by participating in eDiscovery decision making. It is no longer acceptable to claim ignorance of the field of eDiscovery. There are even some Federal judges who have said it may soon be malpractice to not have the basic knowledge and to participate in the early phases of Early Case Assessment. You can’t pass the buck any longer.