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Ralph Losey, one of the leading experts on e-discovery, is a partner and e-discovery chair at Jackson Lewis. His practice has been limited to e-discovery since 2006. Losey is a writer and an educator; he publishes books, articles and the e-Discovery Team Training blog; he teaches at the University of Florida; and he speaks at Sedona Conferences and many other events.
Rebecca James regularly writes industry blogs and articles on a broad array of e-discovery issues and holds degrees in law and organizational development and curriculum design for adult education.
James: How would you characterize the status of the e-discovery industry today in terms of market maturation and what new changes remain?
Losey: My assessment of the market is that we have reached a level of maturity. On the other hand, from the point of view of e-discovery practice worldwide, we are still at an early part of the bell curve. A vast majority of lawyers are still doing very little e-discovery in both federal and state court. We are reaching maturity because we are no longer ad hoc, figuring out how to do e-discovery. We have best practices evolving. Recognize, though, the market has a long way to go to educate partners, associates, opposing counsel, and the judiciary.
James: What skill level and education is required to achieve minimum competency for lawyers who handle e-discovery matters?
Losey: Minimum competency is different than someone handling a complex e-discovery case. There are levels in e-discovery knowledge, just like there are in other areas of the law, and it requires sustained attention and cannot be casually done. Emerging specialists, once rare, now are more common as more work and a higher skill level is needed. You really can’t just dabble in the legal technology: doing a divorce case, then an antitrust case, and then an e-discovery case. It demands study. It is an evolving practice; there are many resources to learn. There are many experts who share what they learn, and lots of ways to continue study and education, including talking to vendors and participating in service providers’ education programs.
James: Why is there seemingly less coverage on e-discovery cases as 2012 winds down?
Losey: The market is beginning to spread out and feature the big cases less as attorneys begin to use e-discovery more.
James: What recent cases have you been monitoring? What recent case has your attention?
Losey: Kleen Products is one of the predictive coding cases, though Judge Nan Nolan’s farewell order is not focused so much on predictive coding. Instead, she admonished counsel, in a sweet fashion (she is a great woman and kind person), on the need to cooperate; the 53-page order begins by admonishing counsel not to “confuse advocacy with adversarial conduct.”
James: Beyond predictive coding, how do you explain what Kleen Products is about?
Losey: This case is primarily about cooperation, as Judge Nolan points to the need for counsel to cooperate in discovery. It’s a good case to read and cite to for cooperation, predictive coding and an explanation of how proportionality can be applied for discovery. It’s a pretty good collection of case law, too, which can help you in your briefs.
[Regarding] predictive coding, I suspect Judge Nolan was using the Sedona principle that the producing party generally has control over how they search and produce. Parties agreed to revisit this in September 2013. This is a big antitrust case that we’ll see more of down the road. Cooperation is not just nice – it is following the code and also in the rules.
It’s not a dispute over predictive coding; it’s a dispute about the scope of discovery. Areas could not be agreed upon. Judge Nolan invokes the doctrine of proportionality. I’m grateful for how Judge Nolan sets out in this opinion the application of proportionality in rule 26(b)(2)C.
James: What best practices were offered in this opinion, and would you say that proportionality is a best practice?
Losey: Absolutely, proportionality is a best practice. In conclusion to the long opinion, Judge Nolan lists out three lessons or best practices: First, start early. Talk to opposing counsel right away and talk about e-discovery. Get an idea about discovery at the get-go, not at the end. Second, every party to a case ought to have a specialist assigned to a case, preferably an attorney. Third, and finally, phasing in e-discovery is a must: don’t try to get all relevant documents at once. Go for low-hanging fruit first. Those are her three best practices.
I encourage everyone to read this opinion. You can cite to it in your cases when you run into situations where there is lack of cooperation, which you should bring to your judge’s attention right away. This is also a best practice.
James: What is the new approach to best practices in e-discovery that you are working on?
Losey: EDBP [Electronic Discovery Best Practices] is a project that I just announced last week but have been working on for years. You can see the model at edbp.com and you can go there to see what I’m doing.
James: How is EDBP different than EDRM [the Electronic Discovery Reference Model]?
Losey: Everyone knows EDRM. All of the conferences I attend have EDRM displayed prominently on booths and materials. EDRM has been around a long time and is well known, well regarded. It is a terrific reference of the overall e-discovery process. I have taught EDRM in law schools for several years. In teaching it and using it, I’ve seen a need for an attorney-centric model. EDRM follows the flow of an e-discovery project, while EDBP follows the more narrowly limited attorney workflow. The difference is to gather in one place and put a structure, as EDRM did for the overall field, around what lawyers specifically do for litigation involving e-discovery.
James: Where do you see e-discovery going in 2013? Any early predictions?
Losey: First, people will stop worrying about whether predictive coding has been approved by courts. Hello, it has. Maturation of predictive coding will get down to the brass tacks of how you use predictive coding and further explore man versus machine. More science will make its way into search and [there will be] a continued push on saving money by more cooperation and proportionality. More special masters will be appointed. In-house counsel at corporations will go to an outsourcing model for litigation support. More and more law firms realize that their expertise is in practicing law, not in processing ESI or non-legal functions. A law firm creating their own litigation support departments was an accident of history to begin with. It happened before there were vendors, and now there are plenty of vendors so law firms can get out of that business. We’ll see more and more of that in 2013.
James: Any closing comments, Ralph?
Losey: Yes, if any practicing attorney has a best practice to share, please email me or leave a public comment on EDBP.
James: Ralph, thank you for your time and your many valuable insights. We look forward to speaking with you again soon.
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Questions from the audience:
James: [A member from the audience asks:] Can neutrals help with cooperation?
Losey: There are mediators and specialists entering the e-discovery space, and it can be helpful to have mediation just on discovery, especially in a bigger case. People spend millions of dollars to have nothing change that could have been handled early by a neutral. When parties can’t agree, they may need the help of a third party, not just a neutral or mediator, but sometimes [they need] the help of a special master. Courts do not often have the time or patience to work through this. Not all judges are Sedona-trained and will give hours and hours of hearing time. Instead, a court will appoint a special master with particular skills as a best practice.
James: [A member from the audience asks:] What are your thoughts on how many law firms actually use predictive coding for outgoing productions, and do they disclose it?
Losey: I don’t think anyone really knows. I am aware of some firms that do use it and do not disclose it. It’s a “don’t ask, don’t tell” approach, and many think it’s none of the opposition’s business to boot. This is an area of dispute right now. As a best practice, should you disclose you are using predictive coding to be cooperative and avoid the possibility of a redo? Or should you not? I think it’s safe to say that there is more of it going on than requesting parties know. And just because you are not seeing more predictive coding decisions like the well-known cases does not mean they are not happening. Some are in private arbitration or [there are] other cases that are not published. It does not mean it’s not being utilized.
James: [A member from the audience asks:] Should a file that is being made available for production be redacted before outsourcing?
Losey: Redaction is an important part of privacy protections. Redacting material that a requesting party has no right to see or the responding party may have a legal duty not to show is an important legal practice/legal function that needs to be done by lawyers and is certainly part of what needs to be done before it goes out the door and is produced. You need to make sure that the confidentiality rights, things like Social Security numbers and HIPAA, financial records, and other information such as [mentions of] children – there are certain things that must be redacted, and it is insufficient just to rely on confidentiality orders. That has to be done by a lawyer, though not necessarily counsel of record. A contract review company could be retained to do this work, as long as it’s done under the lawyer of record’s supervision, because it is unethical to not supervise outsourced work when it comes to legal practice. You must supervise what’s going on or you’re not fulfilling your job as a lawyer, and you can be held accountable for that, not only by the court, but by your ethics bar. Regardless if you are outsourcing or not, you, the attorney, are still responsible.
DiscoveryResources.org offers much needed resources for legal professionals who seek to understand the many new technological and legal challenges associated with electronic discovery.