Phillis_wheatley_frontpiece_1834In 1829, Georgia made it a crime to teach slaves to read.  Literate slaves threatened the control of their masters.  If a slave could read the Bible, a slave could also circulate an inflammatory pamphlet or forge a pass.  Literacy was a step to freedom.  So, with Georgia on my mind, I ask, Are e-literate requesting parties a threat to the status quo?  Is dat why we ain’t teachin’ dem shiftless plaintiffs’ lawyers what de oughta know ’bout ESI?

In June, I was fortunate to be invited to serve on the faculty of a new e-discovery conference set in Atlanta.  It was called “e-Discovery for Trial Lawyers,” the brainchild of a fine lawyer and Georgetown E-Discovery Training Academy graduate, Drew Ashby. Drew’s employer, The Cooper Firm, generously underwrote the event, and the small faculty included large talents, Ariana Tadler, Paul McVoy, Tom O’Connor and Jeff Kerr.  Drew wanted to bring some of the material Tom and I teach at Georgetown to his colleagues in Georgia.  We geared the curriculum to the needs of requesting parties because those needs are unsurprisingly different from those of producing parties, even if those differences spring more from perception and prejudice than practice.

Clearly, every party is both requesting and producing party; but for too long, we’ve been sold the fake news that requesting parties are the avaricious plaintiffs wielding discovery like an axe in a slasher film, and producing parties are the put-upon corporate job-creators pummeled by sanctions despite heroic efforts to meet murky legal duties.  It’s all so much bullshit.

My take is that most plaintiffs’ lawyers don’t understand e-discovery well enough to use it brutally, and most defendants have been getting away with murder in e-discovery for so long they’ve come to regard it as an entitlement.

Wherever you come down on these tropes, I trust you agree in principle that we are all better off with a justice system where the lawyers pursuing discovery are competent to do so.   That is, they understand the electronic evidence likely to bear on their claims and defenses and can articulate requests for it with enough particularity to clearly convey what must be produced and in what forms.

That is not where we are, and there’s enough blame to go around.

No one compels requesting parties to be competent in e-discovery, and there are no educational resources geared to them.  So, they shove “ESI” into their rambling definitions of “document” and shovel out the same old sh…form requests.

Producing parties receive artless, generic requests and respond with artless, generic objections and obfuscation, comfortable in the knowledge that requesting parties are often so anxious to get something they’ll agree to anything.

Judges are lawyers who left the practice before they learned much about e-discovery; schooled by lawyers whose ignorance of e-discovery probably prompted the pending motion–the halt leading the blind.

And then there are the Bars, the Thought Leaders and the Educators.  Did you think I’d let us off the hook?  The Bars inevitably draw the circle of competence in ways that leave their potentates at the center and bury ethical duties of competence in the eighth commentary of Hell.  The Thought Leaders have become so jaded with our failure to prompt e-discovery competence that we now talk mostly about cybersecurity, artificial intelligence, biometrics, blockchain, dark web and foreign privacy doctrines at events incongruously called “e-discovery conferences.”   We haven’t so much trained lawyers to be competent in e-discovery as trained them that it’s prudent to delegate e-discovery competency to service providers.  Hmmm, maybe that explains all those vendors at all those conferences.

What’s that?  Cynical?!?  Moi?  No, no.  I’m brimming with optimism.

Truly, I am.  Because though the partisanship and money that have corrupted our government have also shifted the sands of the justice system (can you say, “Cavanaugh confirmation?”), I believe pendulums don’t defy gravity.  They swing back.  Someday, we will train requesting parties to be adept at e-discovery because we are always going to need requesting parties in an adversarial system, and discovery is e-discovery and will never be less so.

I’m also optimistic that change will come because cases still demand evidence.  Those who argue we’ve moved on to topics like AI, cybersecurity and advanced analytics because we’ve “figured out” e-discovery haven’t noticed that, while they were busy congratulating themselves on their repeatable, defensible, automated end-to-end processes, electronic evidence mutated into something they can’t handle.  Documents are yesterday’s news.  It’s all about data now: mobile, Cloud, app and collaboration.

I borrow your ear to applaud Georgian Drew Ashby and his firm.  Why didn’t the plaintiffs’ lawyer associations get there first?  Where are those plaintiffs groups still?

And I applaud folks like Bill Hamilton at the UF Levin Law School in the swamps of north Florida, whose tireless labors on behalf of small firm practitioners compel an equally tireless focus on the fundamentals of e-discovery.  To attend most other e-discovery conferences is to indulge in the delusion that e-discovery begins with lawyer review.  But, the annual UF E-Discovery Conference hasn’t lost its way; it’s still mostly about e-discovery fundamentals all across the EDRM.  Maybe it will be the place where we can improve all that follows in e-discovery for all concerned by honing the skills of requesting parties right from the start.  “Well begun” they say, “is half done.”