What Lawyers are Really Asking About eDiscovery Behind Closed Doors

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08May2017

What Lawyers are Really Asking About eDiscovery Behind Closed Doors

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By Tom O'Connor

2016-02-03_10-11-27

I recently participated in the San Francisco Exchange program put on by Today’s General Counsel, along with Bob Little, a marketing colleague at Advanced Discovery.  While I typically learn something of interest at industry events, the insights from this meeting were a bit more surprising.  First, a little background.

The Exchange is a remarkable annual program held in six cities around the country; its distinction arises from its format. Instead of the traditional – and passive – “talking heads” panel, the Exchange features interactive and engaging roundtable sessions.  No PowerPoint presentations or one-way pushing of information and agendas. Participants enjoy the unexpected luxury of focused discussions, led by a team of experts following a loose and flexible agenda that evolves along with the dialogue and the direction from the group.  A strict, no attribution policy keeps the discussions lively, pointed – and, quite frankly, relevant.

The Exchange is intended specifically for C-level business executives, and the sessions are led by an A-list of eDiscovery professionals including, among others, Robert Singleton, Principal at Squire Patton Boggs; Paul Weiner, Shareholder and National E-Discovery Counsel at Littler Mendelson; Robert Brownstone, Technology & eDiscovery Counsel and Chair Electronic Information Management Group at Fenwick & West LLP; Andrea D’Ambra, Partner at Norton Rose Fulbright US LLP;  and Jennifer Feldman, Of Counsel at DLA Piper.

So with all this brainpower and an agenda that featured sessions on proportionality, preservation, investigations, review tools, and cross border issues, you’d expect the discussion to get very technical very fast, right?  Well, not exactly.

The very first session is called Opening Remarks and Polling the Audience, designed to gauge the topics of interest to the attendees. During this past session, one of the very first observations struck a chord with me – and others in the room.  An experienced and tech savvy trial attorney (no names, remember) commented that despite the ambitious agenda topics discussed at most industry conferences, including the one at which we were currently present, most attorneys did not get the true benefits from the discussion because most did not understand the “ABCs” of technology.  That is, he felt they understood the underlying legal issues about preservation and production but not the basic technology issues of how computers actually stored information, what various production tools actually did, or how cloud-based applications actually worked.

It was an unexpected comment, but one that drew nods of agreement and words of encouragement from the audience.  And certainly, that is our experience at Advanced Discovery.

For example, one of the most requested CLE sessions we deliver is entitled, Technology 101:  An Introduction to the Basics of Computer Technology that Every Attorney Should Know.  It’s a course that provides the necessary starting point for attorneys to incorporate effective technology into their practice by having a frank and honest conversation about the technology central to modern litigation and eDiscovery.

In my time facilitating CLEs and other training sessions, I’ve found that many attorneys are afraid to voice their concerns about technology basics.  We are all used to being the experts in our respective legal fields – and we don’t like saying, “I don’t understand.”  But understanding the basics of technology so critical to our effectiveness in today’s practice of law is critical.

First and foremost, it is impossible to decide how to properly identify, collect, and preserve electronic documents if you don’t know how they are being stored.  It is no longer a simple question of going to the file room and pulling a specific matter file.  Now we have network shares, local backups, laptops, tablets, smart phones, and even IOT devices.  Meeting the preservation obligation is completely dependent on a basic understanding of how electronic documents are created and stored.

And without that knowledge it is impossible to argue a proportionality defense or dispute an email production.  It is no longer enough to say, “This is going to cost a million dollars” or “that production is incomplete.”  Technical specificity is required and a motion or even case can rise or fall on the level of technical acumen behind the legal argument.

And that brings up the next point:  competence. More and more courts are demanding technical competence by eDiscovery practitioners in both specific local rules and rulings.  This judicial demand is being echoed by state legislatures which are passing civil rules to that effect (over half as of this writing) and bar associations which are requiring specific competence skills (California) or even mandatory technical CLE education (Florida).

From the perspective of Advanced Discovery expert advisors, this minimum degree of technical understanding is necessary to help us work with our clients to select the proper tool set for the documents being identified, processed, analyzed, reviewed, and eventually produced.  As important, a basic understanding of technology means lawyers can make better informed decisions about their eDiscovery partners.  If you don’t know the questions to ask or understand the answers given, law firms and corporate legal departments risk unpredictable budgets and results from their eDiscovery partnerships and investments.

Our mantra at AD is “Get answers now.”  To effectively do that, we need both a high degree of technical knowledge, as well as a minimum level of technical understanding by our clients.  It is in both our interests to ensure that happens.

See original article here.

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