Do Lawyers Need to Just “Eat Their Peas” (Learn E-Discovery)?

Electronic discovery is not rocket science. But with all due respect to rocket scientists, rocket science is not “rocket science” – if you are a rocket scientist. Full disclosure: I am not a rocket scientist. However, I have spent a few years in the electronic discovery trenches and when I am explaining electronic discovery concepts to the uninitiated I sometimes feel as if I am explaining rocket science.

A recurring theme at conferences and in the trade press is the need for lawyers (all lawyers) to just buckle down and learn e-discovery. Most lawyers would agree that the legal system would benefit from each litigator being conversant in e-discovery and it has been several years since the so-called E-Discovery Amendments to the Federal Rules of Civil Procedure went into effect. So what is the problem? Are lawyers, like politicians debating the debt ceiling, simply unwilling to eat their peas?

To be fair, there is occasionally an attitude of “I have been practicing for 20 years – don’t tell me I need to learn e-discovery.” However, that attitude does not tell the whole story. 

I have taught CLEs on a range of e-discovery topics and watched as successful litigators struggled with the most basic of e-discovery concepts, e.g. metadata, de-duplication, production format and load files. 

We have put together a team of more than a dozen lawyers, plus paralegals and technical folks that focus exclusively on e-discovery. We do all e-discovery all the time. And even in a group that specializes in e-discovery there are competing views on the most defensible and efficient way to accomplish a given task. I shudder to think of the conversations (or lack thereof) happening in less sophisticated shops. But is it realistic to expect lawyers that specialize in litigating patents or class actions to add what amounts to another specialty to their practice?

So given that e-discovery is not going away, what is the answer?

I think the answer is that some lawyers will “get” e-discovery and others will not. And that is okay. Just like patent and class action litigation, e-discovery is a specialization. If someone comes to me with a complex tax issue, I will not Google “complex tax issue.” Rather, I will toss it to the tax team in our firm. 

The legal profession will develop e-discovery sophistication in time. E-discovery knowledge is currently held by a relatively small group of lawyers. In time, more lawyers will join that group as they deal with e-discovery issues in their cases and as a generation of lawyers that grew up with Facebook and text messaging move up the ranks. 

If you are one of the lawyers that does not understand e-discovery, then by all means learn all that you can. But in the meantime, know who in your firm to call when an e-discovery issue arises. Get them involved early in the case. Appreciate that the complexity and variability of e-discovery require the parties to cooperate to reduce cost and gain efficiency – to more quickly get to the documents that are really at issue in your case. 

One of my partners, Dennis Kiker, blogs nearby on the dangers of providing e-discovery services without the requisite sophistication. Whether you are identifying and collecting relevant data, negotiating an electronic discovery protocol or selecting a processing, hosting and review vendor, get your e-discovery sherpa to spot the issues that otherwise may come back to haunt you later.

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