While technology has reduced costs for many areas of legal practice (e.g., research), the centrality of electronically stored information to complex civil litigation has sent discovery costs skyrocketing. Hence the rapid proliferation of e-discovery vendors like so many remoras on the Biglaw shark. Nobody seems to know how large the e-discovery market is — estimates range from 1.2 to 2.8 billion dollars — but everyone agree it’s not going anywhere. We’re never going back to sorting through those boxes of documents in that proverbial warehouse. New amendments to the FRCP specifically dealing with e-discovery became effective way back in December 2006, but if the e-discovery vendors (evangelists?) at this week’s LegalTech tradeshow are to be believed, we are only in the technology’s infancy in terms of its development and impact on the legal profession.
At LegalTech, we attended a “supersession” presented by e-discovery provider Planet Data, promising to present “judicial, industry, legal, and media perspectives on where legal technology is taking litigation and how it affects you.” Don’t be jealous….
The format of the panel, comprised of an industry analyst, the editor-in-chief of the National Law Journal, and an e-discovery attorney, was a sort of moot court argument presided over by Michael Baylson, U.S District Judge for the Eastern District of Pennsylvania. The hypothetical scenario involved a discovery dispute between a “global insurance company” and “numerous and various” businesses who allege they were not informed of kickbacks to their insurance brokers. In the promotional material for this panel session, this was described as a “thrilling hypothetical.” True fact. (As Miss Jean Brodie might say, “For those who like that sort of thing, this is the sort of thing they like.”)
Anyway, in this pretend discovery dispute, the faux defendants produced hundreds of documents by way of a “stringent technology-assisted review.” The imaginary plaintiffs, on the other hand, produced a mere couple thousand documents by conducting personal interviews and keyword searches. Each side was deeply, hypothetically unhappy with the other. Judge Baylson observed that there were three ways to resolve this dispute: 1) depose those individuals actually involved the review (i.e., the IT guys); 2) appoint a Special Master; and 3) sjbfwbfoe&%ubfo44…. Huh? Sorry, nodded off there for a sec.
So anyway, among all the discussion of the work product doctrine and predictive coding algorithms, there emerged an interesting question: should lawyers be held to a standard of technological competence? Judge Baylson and the “attorney” for the plaintiffs, Anne Kershaw, had emphatic responses.
During the discussion, Judge Baylson noted, delicately, that there is a wide range of levels of technological savvy to be found among the judiciary and that attorneys would do well to account for these variances in tailoring their arguments. Relatedly, there is a movement afoot, spurred on by a series of recent ethics opinions, and embodied in recent changes to the ABA Model Professional Rule 105A, to hold lawyers accountable for their relative (in)competence regarding all matters technological. Under the new Rule 105A, “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” But this is an after-the-fact approach: whether a lawyer ought to be found in violation of an ethical obligation for a technological lapse. Prompted by panel member David Brown, executive editor of ALM, the question was raised as to whether there should be, along with bar passage, character/fitness, the MPRE, etc., some “technology bar exam” requirement as a condition of licensure. Judge Baylson and Anne Kershaw responded with a resounding NO, but for different reasons and from different perspectives.
Judge Baylson (our paraphrase):
If you look at the federal docket, you have a great many civil rights cases and employment discrimination cases that make up a huge percentage of the caseload. The discovery process in these cases — the vast majority of these cases — do not typically involve the sort of electronic discovery complexities we’ve been discussing here. There is not nor should there be a one-size-fits-all approach to this matter of technological prowess.
Anne Kershaw (visibly scoffing):
“Technology” is too complex, too quickly evolving, to lend itself to standardization of this type. There are some things for which people use different words, and other times the same word is used to describe different things. I have to ask 150 questions just to understand what they are trying to say. It is the job of a good lawyer to ask hundreds of questions and crystallize the issues so she can take them to the judge and the opposing party for resolution.
So that’s a relief. Ted Olson can relax.