E-Discovery Lawyers – Part II

Any lawyer that has been in practice for a few years will have become familiar with having to say, “I’m not that kind of lawyer.”  Happens to me all the time.  I got a call the other day from a veteran seeking help recovering benefits that he says were wrongfully denied.  “I’m not that kind of lawyer,” I heard myself say.  “Know anything about taxes?”  “Should I set up an irrevocable trust for my grandson?”  “My daughter just got her third DUI…”  “I’m not that kind of lawyer.”

It occurred to me after re-reading last week’s post (yes, I re-read my own blog posts, doesn’t everyone?), that I might have made a definitional error when I said “I want an e-discovery lawyer for my e-discovery project”. There are a lot of folks that consider themselves e-discovery lawyers who, when presented with the multi-million page document review project, will say, “I’m not that kind of lawyer.” Consider me, for example. Sure, I’ve helped out with the occasional project recently, mostly in an advisory capacity, but it has been close to a decade since I had to be the guy directly managing the project, the review team, and the vendor. So, I really am not that kind of lawyer, but I am still an e-discovery lawyer. “How can that be,” you ask with shock and surprise? The answer is simple: e-discovery is not simple, and it is not simply document review. Document review is incredibly important and increasingly complex, but it is the tail end of a process that begins with people like me creating ESI and saving it somewhere on a computer system. It’s towards that end of the process that e-discovery lawyers like me spend most of our time, figuring out how to more effectively and efficiently organize, identify, preserve and collect information.

But even at the near end of the process, there are a number of different and equally important roles in the process, some involving lawyers and some not.  As I suggested last week, you need a quarterback, someone to read the defense and call the plays, and I think that lawyers – the right kind of lawyers – are particularly well-suited to that role.  But a successful e-discovery project requires a team.  Someone told me today that Tom Brady can’t throw the ball and catch the ball.  Well, neither can the e-discovery lawyer I described last week.  She needs a team of professionals to get the ball across the goal line.  The range of skills and disciplines necessary to efficiently and effectively execute an e-discovery review project is impressive: the technological know-how of an IT professional, the organizational skills of a paralegal, and the unheralded but critically important reviewer.

Yes, despite all the technological breakthroughs of the last decade, there is still a place for the human being looking at documents and making decisions about the meaning and importance of that document.  In most cases, those decisions are legal ones about relevance, privilege and confidentiality, so, in most cases, those reviewers are attorneys.  These folks are the linemen on the team, and they are highly undervalued.  Ask any quarterback (ask Tom Brady, for instance) how important the guys on the front line are.  Tom can’t pass and block at the same time either.  Well, no e-discovery project is going to get done without the front line reviewers, and there is a world of difference between a dedicated, invested professional, and someone biding time until something better comes along.  I argued last week that you need an e-discovery lawyer for your e-discovery project.  What I should have argued is that you need an e-discovery team, and you should care about each and every member of the team.  Indeed, you should also care about the playing field, the trainers, and the locker room.  You’ve got a lot riding on your e-discovery project.  Do you really think that the cost per document should be the sole criteria for choosing who handles it?  Sure, cost is important, but so too is the outcome, so make sure your money is being well-spent.  Get to know your quarterback, walk the field and meet the team.  Good outcomes are a result of good people following good processes and leveraging good technology.  So, what do I really want for my e-discovery project?  A good e-discovery team.

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