We are the transitional generation in terms of the shift from discovery in a world geared to information on paper to one where paper is largely an afterthought. An airline boarding pass is a screen shot of a bar code, gate, time and seat number. We print it in case TSA can’t scan our phone, then trash it when we touch down.
Growing up, the organization of information on paper was so ingrained in our education that we take our “paper skills” for granted even as paper has all-but-disappeared. We learned to color inside the lines. Put our name and the date at the top of our papers. Organize alphabetically. Staple and paper clip.
We learned the structure of a “business letter.” Date and subject go here, salutation there, and don’t forget the CC: and BCC: addressees at the bottom.
All of it marched more-or-less seamlessly into a common culture of paper records management. Correspondence flowed into files, folders, drawers, cabinets and file rooms. Everything had a place, and everything depended upon information being in its place. That is, everything depended upon organizing information from its creation and all along its path until it found its semi-permanent place in the storage and retrieval system.
As information went digital, we clung to metaphors of records management. The screen icons remained files, folders and even envelopes. But while we pretended digital information was still like paper, our culture of records management collapsed. The fleeting phone call and the enduring business letter and “memo to file” all morphed into e-mail. Subject lines ceased to reliably describe contents. File clerks became baristas and file rooms became server rooms. Everyone was left to their own devices—literally—in terms of information management. Computerized search, they promised, would do away with all that pesky management of documents.
And, in many ways, the promise was kept. We draw on vast reservoirs of information using search tools of such instantaneous ingenuity and complexity that we rarely reflect on what transpired for us to find that Chinese restaurant in San Francisco or convert U.S. Dollars to Brazilian Reais at market rates. We’ve been content to leave it to the geeks.
And there’s the nub of the problem in e-discovery. As information stopped being like paper records and everything became databases, lawyers were content to leave organization to the geeks. We can’t imagine a competent lawyer not knowing how to find a document in a file folder or cabinet; yet, oddly, we can’t imagine a lawyer knowing how to fashion a competent ESI search protocol or query a database. We barely expect lawyers to know what ESI protocols and databases are. We’ve set the bar too low for the Bar, and clients and judges are suffering as a consequence.
Part of the problem is that the practical education of lawyers has long depended upon veteran partners handing down the lore of lawyering to associates. But when it comes to e-discovery, veteran lawyers have nothing to share. “Back in the day” war stories about bankers’ boxes in sweltering warehouses aren’t much help when you’re standing in an icy server room.
Another problem is that when we do try to teach e-discovery, we do a lousy job teaching the very thing that makes e-discovery challenging: the technology. Most e-discovery courses teach the law of e-discovery and give short shrift to the “e.” Well, guess what? The law of e-discovery isn’t all that hard to master. You can learn to spout “not reasonably accessible” or “meet and confer” all the livelong day, and you’ll still be as useless as teats on a boar hog when it comes to bringing off an e-discovery effort that works without waste.
The transitional generation lawyer responds, “I’ll hire someone who knows that stuff.” Okay. That’ll work…for a while. But soon, it will become clear that lawyers can learn two things, and sooner still, clients will tire of paying for their lawyer’s e-sherpas.
I say, let’s start learning to carry our own briefcases when it comes to digital evidence. Let’s stop kidding ourselves that this isn’t something we need to understand, and stop being so damned afraid to get our hands dirty with data or look like we might not be the smartest person in the room because we don’t know what goes on under the hood.
I recently asked a speaker on technology-assisted review for his thoughts about the respective strengths and weakness of the various techniques used to cluster documents. He replied that he didn’t know and didn’t need to know. He said, “I don’t need to understand how a jet engine works to fly on an airplane.” I think he forgot that, as lawyers, we are the pilots, not the passengers. We are ultimately responsible for the integrity of our craft.
It breaks my heart when law students question why they need to learn about hashing or unallocated clusters. “The lawyers I talk to say this is stuff they hire people to handle.” How am I to respond? The lawyers you talk to choose to believe that what they don’t know can’t be a measure of their competence?
Each of us in the transitional generation has to make up our own minds about what we need to know. We can choose to be Eloi or Morlocks. But let’s not kid the next generation of lawyers that they have that choice. They will little know or need our paper-centric skills, and we do them grievous injury when we assure them it’s someone else’s job to understand information technology. We cannot be their mentors on these things, and their easy fluency with consumer technology is insufficient, by itself, to manage e-discovery. They need to learn more than we did, and the best help we can give them is to make sure they understand that.
Luciano R. Humberto said:
You know how much I respect your knowledge and your opinion on technology and e-Discovery issues; however, sometimes I think you let your passion for technology speak too loud, much louder than you passion for the Letter of the Law.
While I agree that a level of understanding of the technology is fundamental for a lawyer to practice as an e-Discovery lawyer, I do not subscribe to the theory that they have to dominate the technology aspect of it, as you indubitably dominate. The “geek” virus has not infected every lawyer.
I believe that is the same in other areas were lawyers are a fundamental part, but not necessarily the solo act. Let’s take M&A or Real State, or State & Trust. In these areas, as in many others, consultants work hand in hand with Lawyers to provide the best results to their clients. Neither should go alone.
If you would flip the point of view a bit, one could say that a very experienced technology consultant, that has been working with e-Discovery for a long time and studied the Law, could offer legal advice. Well, we all know how bad idea this is, and I am not even talking about the legal aspect of it.
Because I am a technology consultant and not a lawyer, this might sound as an attempt to defend “my turf”; however, I do believe that the partnership Lawyer-Consultant is more efficient and brings better results for the clients.
Again, neither should go alone.
LRH, as an attorney who focuses on e-discovery, I must disagree somewhat insofar as I’ve found e-discovery technology education tremendously helpful to my practice. E-discovery doesn’t exist in a vacuum.
The decisions about what search methodologies to use or what electronic information to collect can drastically affect the facts that come to light. Thus, good factfinding requires integration of knowledge about technology (the means) and legal strategy (the ends).
If lawyers and e-discovery technological specialists were good at understanding one another and working together, this integration would be seamless. But in my experience, unfortunately, these are not groups that mesh well. In my experience, lawyers don’t like deferring to or sitting down to work with the techies and would rather give quick instructions and receive good results. Not a recipe for success. And techies aren’t really in charge, so they can’t force the lawyers to sit down and listen. So if these two groups probably aren’t going to work together, then one of these groups should probably learn a bit about the other’s craft.
Lawyers are the more natural candidates. They lead the litigation and thus are ultimately responsible for the tech decisions made. They are also the traditional contact point for the client and court and must be able to explain e-discovery to those audiences. Finally, technology is roughly the same from case to case. Metadata extraction is the same for an antitrust case is it is for a patent case. But the facts and legal landscape in a complex litigation can take months to master. It’s more efficient for an attorney to learn tech concepts that can be applied to every case than for a techie to have to learn all about each case she works on.
That’s not to say that a lawyer needs to know all of the nitty-gritty. For example, while I believe it would be useful for a lawyer learn about some basic types of structured data, I don’t see much of a need for a lawyer to be able to create a new field in an SQL table from a command line prompt.
But I’ve found the more I learn about the tech side, the more that I am able to fill the role of integrating the tech means with the legal ends, where otherwise a gap often exists.
David Tobin said:
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