Biglaw, Continuing Legal Education / CLE, Contract Attorneys, Document Review, In-House Counsel

The Brave New World of Electronic Discovery

I found today’s piece on contract attorneys interesting, given that I just attended an e-discovery CLE program run by a local firm (Ward Greenberg) last week. The program centered around the practicalities and ethics of e-discovery and the case law surrounding those topics.

I admit to being taken aback at how times have changed since I was utilizing an OCR viewer to review documents while searching for keywords to code. Those were the days. As mentioned in the contract attorney column, doc review was a sure way to meet and exceed billable-hour targets simply by doing essentially monkey work. And the firms were all too happy to bill me at out at hundreds of dollars per hour for looking over repetitive and duplicative documents.

Now that I am in-house, I would have a conniption fit if a firm tried to pull such a stunt — and I don’t think many firms would….

A major lesson that I took from the CLE, and one of which in-house attorneys need to be aware, was that in a few short years, the e-discovery marketplace has so drastically changed as to become unrecognizable. The body of case law is growing right along with this niche market. Judges are allowing (or forcing) litigants to engage in predictive coding, a term I thought only my statistics expert wife would know. Discovery strategies are being driven by the type of electronic discovery, not necessarily the case issues themselves. The Federal Rules will be changing to account for the changes to this topic, and it was eye opening to learn that we are in the midst of an ongoing paradigm shift (and one that I need to be more keenly aware of, beyond simply reading articles about the latest case). No, I don’t litigate anymore, but e-discovery is just as relevant for me, given the case law and ethics rules around litigation holds.

The term e-discovery used to mean looking at scanned documents on a computer screen. It was really a misnomer for doc review because the only thing “electronic” was that the computer was plugged in. Today there are so many e-discovery service providers that it is hard to discern one from the other. Heck, my company even owns one. The exhibit floor at the ACC Annual Meeting used to be dominated by law firms; now the booths are largely e-discovery companies. I attended a presentation with a local discovery company (D4) and was amazed at the infrastructure and capabilities of a growth company we used to rely on just for document scanning.

In a future column, I will be speaking with some principals of D4 about the ways in which they are shaping their business to reflect the marketplace of e-discovery. In the bad old days, we used to walk two-wheelers of document boxes thorough Midtown Manhattan to Ikon for scanning and Bates stamping. Now, a company like D4 is expected to utilize the latest technology to keep databases safe in server rooms behind walls two feet thick. I realize I am geeking out over a topic that usually causes drowsiness, but I always did enjoy document review. And this newfangled (yep, now that I am middle aged I am entitled to use words like newfangled) technology is turning the world that I knew as a young associate into an unrecognizable thing of beauty. And it costs a hell of a lot less than paying an associate to get pad thai stains on my documents.

Disclosure: Above the Law’s advertisers include several leading e-discovery companies, including AccessData and Recommind.

Earlier: 5 Threats Contract Attorneys Pose For Biglaw Associates


After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as an in-house lawyer at a major technology company. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at dmowry00@gmail.com.

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