An eDiscovery Love Story

On this eDiscovery Day, take advantage of the education that's out there.

It’s eDiscovery Day.

Today marks 12 years and 3 days since the Federal Rules of Civil Procedure were amended to provide for the discovery of electronically stored information. Those amendments effectively created the eDiscovery industry, and it’s been a roller coaster of a ride over those years.

I’ve loved every minute of it.

Here’s why.

We’ve seen the adoption of technology in the legal space at a rate that is unprecedented. For the first time in my 20+ years as an attorney, I don’t feel like we are 10 years behind the curve in advancing the law. Don’t get me wrong, as I’ve discussed previously, we have a long way to go to adequately address the legal issues that the development of technology has created.  Cambridge Analytica’s use of Facebook data put front and center the need to address privacy and widespread misuse of information from individuals, yet our Congress has not acted to try and address it, nor do we really expect to see anything productive in the near term. Maybe some lessons from our friends in the EU are in order.

But at the trial court level, we are seeing thoughtful decisions coming from judges. Since December 1, 2006, when the new rules went into effect, we’ve seen 7,066 decisions about electronic discovery across the country. As the map below shows, every federal circuit has been actively addressing these issues across the country.

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While many of the judges who framed electronic discovery have retired, we are seeing a bright crop of judges who have tried cases recently and either understand first hand the issues lawyers are facing with ESI, or are trying to learn. Those judges are pushing lawyers to understand the issues and grow in their knowledge, and taking them to task when they don’t comply with the new rules. I’m seeing lawyers ask questions about how to do things they’ve never done and wade in up to their eyeballs. It’s a beautiful sight.

Lawyers have had to learn a whole new way to do discovery. And boy, are you frustrated. It’s the first time we’ve had a real shake-up in the law and we needed something to jazz it up. Some of you have done it well, and others of you have found someone to help you — kudos to you both. I’m still seeing a lot of believing that eDiscovery is just collecting data the same way you collected paper and, as I’ve said many times before, that’s a mistake. But every time I get to teach a client or one of our software users how to use ESI effectively and for the betterment of their clients, I feel a joy knowing that clients will get the benefit of that wisdom down the road. And justice may come faster or less expensively.

Our job is to bring justice and to help others who can’t help themselves. The law is a sticky web to navigate, and the power of ESI has given us a superhero’s ability to solve complex puzzles we couldn’t do previously.

I’m grateful for the eDiscovery educators across the country. Those who train law students and lawyers and judges. Those who participate with me in educational events like The Masters Conference and the UF eDiscovery Conference. Those who are apart of organizations like ACEDS — promoting eDiscovery professionals and elevating the work they do. The law and technology is changing so quickly that creating and teaching these courses requires constant work to rewrite and update syllabi and work with providers on technology. All for very little or sometimes no pay. These are lawyers and professors giving back to their profession in a very meaningful way. I am grateful to have been included in their efforts.

That brings to my favorite part of eDiscovery — getting to solve hard problems for my clients. We’ve been able to help a new employee stave off a vengeful former employer with the use of audit logs proving that she had not engaged in nefarious behavior. We’ve assisted a client in avoiding tens of thousands of dollars in credit card debt he had no hand in creating. We stood up for a client wronged by a system with no accountability and gathered the evidence to prove our case. We’ve worked to control the costs in bringing public transportation to a much needed municipal area growing faster than its infrastructure will accommodate. We’ve helped law firms set up eDiscovery processes and identify technologies to let them provide better service for their clients and make working with more clients possible.

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In all of it, I’ve gotten to work with you. To talk to you at events, to answer questions, to participate in Twitter chats, and be in your inbox. You are each a part of my ediscovery journey. Your questions and comments spur new ideas for me to consider. Your enthusiasm and desire to tread some of the same paths I have walked makes me smile. Your skepticism encourages me to find new and better ways to bring you into the light that is ESI.

On this eDiscovery Day, take advantage of the education that’s out there. There are in person events at many ACEDS chapters, and online events happening throughout the day. Sign up. Connect on Twitter, join the conversation. Get in the game. You know you secretly want to.


Kelly TwiggerKelly Twigger gave up the golden handcuffs of her Biglaw partnership to start ESI Attorneys, an eDiscovery and information law Firm, in 2009. She is passionate about teaching lawyers and legal professionals how to think about and use ESI to win, and does so regularly for her clients. The Wisconsin State Bar named Kelly a Legal Innovator in 2014 for her development of eDiscovery Assistant— an online research and eDiscovery playbook for lawyers and legal professionals. When she’s not thinking, writing or talking about ESI, Kelly is wandering in the mountains of Colorado, or watching Kentucky basketball. You can reach her by email at Kelly@ediscoveryassistant.com or on Twitter: @kellytwigger.

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