eDiscovery, Technology

The Natives Are Unimpressed

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I miss the old days
I’d scare natives with eclipse!
Now? [Shrug] check Twitter

The bad news: we took away the “easy” button in eDiscovery. The good news: see “the bad news”

Having reviewed a bit of the story of eDiscovery, it may be time to reveal another insider secret: eDiscovery used to be easy. Why? Because we were all good at it? Nope—not at all; it was easy for the exact opposite reason. No one had the slightest idea what they were doing, and so the bar for being an eDiscovery expert was pretty darned low. There were no applicable rules for using electronic information in evidence or requesting ESI in discovery. There were very few cases, reported or otherwise. Most importantly, almost no one had an inkling that stuff on peoples’ computers could be actually useful for lawsuits. Why even worry about it?

Let me tell you a story about “the old days.” Don’t want to read yet another old lawyer story about themselves? If really feel that way, simply skip ahead to the next section and designate the next part here TL;DR – but the rest of you, welcome to more of my “amusing” “wisdom” (deliberate quotes on both of those terms).

Long before anyone put that “e” in front of discovery I was a young lawyer representing employers on a number of employee trade secret theft and breach of employment agreement cases. We would go after employees, often in sales roles, who had (allegedly) taken corporate clients with them to their new employers, in violation of their non-compete agreements. The employees would, naturally, deny everything. Part of what I did in these cases was go through ex-employee work computers and use some cheap software programs to undelete and recover stuff that the ex-employee tried to hide. I always found something, often letters to clients selling them on the virtues of the employee’s new company written before they left their old company.

What did I do with these documents? I would file my motion for a preliminary injunction without attaching any of them. I’d wait for the ex-employee and their lawyer to show up in court and utter their usual denials of any wrongdoing and cries of oppression by The Man. Then, and only then, I would pull the printouts of these documents from my suit jacket pocket (this was back in the days of L.A. Law, so everything just had to be dramatic!) to present the still-smoking gun. This worked devastatingly well.

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When I tell this story today to experienced eDiscovery colleagues, their reaction falls somewhere between bewilderment and horror. “You didn’t make a forensic image?” “Don’t you realize how much data you spoliated when you installed that software?” “Didn’t they object to the hearsay evidence?”

My answer: so what? Flippant, but true. Nobody I confronted in this game ever recovered from the initial shock and awe to actually respond with a coherent defense or objection. I was the guy who could make documents that were deleted – gone forever, supposedly – magically reappear! Cower before me! I likened this to the oft-repeated scene in one of those utterly racist Victorian Era explorer novels where the Great White Explorer terrifies the stereotypical natives into submission by taking away the Sun during a (ludicrously convenient) eclipse.

The good news is that things are getting better. Nowadays, the local natives would be far more likely to shrug at my empty theatrics and instead check out the eclipse on Twitter, Facebook, or Instagram. If I tried this kind of stuff now, I would end up as one of the “don’t let this be you” cases we (Professor Diane Barry and I) have students read in my eDiscovery law class.

Speaking of eDiscovery law classes, eDiscovery industry giant Kroll Ontrack just posted their take on the number of law schools offering such classes. Of the 193 U.S. law schools Kroll counted, 35%–69 in all–offered one or more eDiscovery classes; of those, only 8 had a “hands-on technology component.” The Kroll eDiscovery.com blog seems to imply that those numbers are bad, but considering that eDiscovery as a discipline is arguably just a decade or so old, those numbers don’t seem all that shabby compared to stuff with a lot more history, like Contracts (Carbolic Smoke Balls, anyone?).

The number of eDiscovery classes is only going to increase. This year, the State Bar of California, Standing Committee on Professional Responsibility and Conduct just issued a Formal Opinion Interim stating, in plain English, the ethical requirement that “Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery. . .” The interim opinion goes on to state that at minimum, attorney competence with eDiscovery requires the ability to:

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1. Initially assess e-discovery needs and issues, if any;
2. Implement appropriate ESI preservation procedures, including the obligation to advise a client of the legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation;
3. Analyze and understand a client’s ESI systems and storage;
4. Identify custodians of relevant ESI;
5. Perform appropriate searches;
6. Collect responsive ESI in a manner that preserves the integrity of that ESI;
7. Advise the client as to available options for collection and preservation of ESI;
8. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan; and
9. Produce responsive ESI in a recognized and appropriate manner. (Formal Opinion Interim 11-0004, at 3)

While this is not yet a final opinion this is still heady stuff. It’s also remarkable because it follows on the heels of last year’s addition to ABA Model Ethical Rule 1.1 (Competency), which revised its Comment 8 to specifically mention the need for technological competency (“To 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 . . .”).

Kroll also seems concerned with the fact that only a few law schools teach eDiscovery as part of continuing legal education programs. Personally, I don’t share such concerns; CLE is not a core mission of law schools, and a number of third-party CLE groups specialize in eDiscovery programming. The fact that the Association of Certified E-Discovery Specialists (ACEDS) was purchased late last year by BARBRI is likely to help things along, too. ACEDS had gotten itself into some hot water over some strange digressions from its mission over the last few years. BARBRI, with its long track records of providing post-law school learning to lawyers seems to be helping to “reset” things at ACEDS, bringing it back to a path of providing focused and much-needed eDiscovery education.

So the good news is that lawyers are indeed staring to learn, if only because they have no other choice. And, for those who can learn, there is opportunity.

What is the point of all of this?

This is my fourth eDiscovery column for Above The Law. I have had a lot of fun and hopefully I have shed some light on the eDiscovery industry, in between my sarcasm and snark. I also recognize, though, that snark isn’t enough. I should be doing more, aspiring to a higher purpose. If this is only about nihilistic fun, this has been a wasted opportunity. That seems wrong.

Why the sudden bout of seriousness? For a while, I had been planning to discuss some more serious topics in this column, but I admit that I hadn’t yet figured out when it would be best to do so. Then, last week Alex Rich wrote about a contract reviewer who challenged his employer as to whether he was doing actual legal work, and ended up not just losing that fight, but also losing his job, his home, and was forced to live in his car in the hope of starting a new life in a profession that doesn’t require a degree . . . a high school degree. That seems wrong, as well.

Anyone who has read Above the Law more than twice knows that the job situation for young lawyers is indescribably difficult right now and that it has been so for the past several years. eDiscovery contract document review jobs were once, arguably, a potential temporary safety net for some. Yet now, with some temporary review projects paying less than a dollar over minimum wage and some law schools creating review centers right on campus to direct students into them (and thereby inflate post-graduation employment statistics), I just don’t see how anyone can disagree that contract attorney review is no longer a solution, but rather part of the problem.

For those of you who are stuck in contract review jobs, and for those very few of you who actually like it , please forgive me for I am about to say here: contract review jobs do not provide you with training for legal work. With very, very few exceptions, these jobs are a road to nowhere. Let me put this another way, because it bears repeating: if you go into contract review work without some prior history of having developed the legal skills employers demand, your chances of getting into that full-time Legal job to pay off (massive) law school debt and start a life is effectively zero. That seems just incredibly wrong.

There are good jobs, even great jobs, to be had in the eDiscovery industry. My friends and colleagues in eDiscovery are living proof of that. I am living proof of that. But, I also had the advantage of prior history as a trial lawyer, as a dot-com guy, as a writer and a presenter and more, all of which helped launch me into this career arc. Freshly-minted lawyers going straight from law school into contract review work just won’t get those experiences, and your career arc is going to flatline.

So what is my advice? Honestly, right now I don’t have any just yet. Yet I believe very strongly that “we is smarter than me” and so I am going to ask my friends and colleagues and bring our collective wisdom to you. I’ll still write about eDiscovery with all of my usual sarcasm and snark – and there are oh so many sacred cows still left to turn into hamburger. But I am also going to try to end every article with some advice to those who might benefit.

Anything else would just seem wrong.

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