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.