In 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.”
Chad Roberts said:
Craig – the Plaintiffs’ groups are indeed getting it together, but there is obviously still a lot of work left to do. I know you understand the inherent problem — when your clients have vital signs instead of balance sheets, even the most accomplished Plaintiffs’ lawyers in the profession will never conduct a million-document production. Personal experience with the left side of the EDRM never gets established in the Plaintiffs’ tool kit, and the disparity becomes entrenched and systemic. But I am as brimming with optimism as you are, because Plaintiffs’ lawyers are the most crafty and innovative problem solvers in the entire lawyer gene pool. They find solutions, and they learn to collaborate. AAJ’s electronic discovery resources have grown in abundance, and dedicated Plaintiffs e-discovery practitioners meet informally and regularly to share and exchange best practices. It’s an exciting part of the lawyer community to be in at the moment because there is so much to do, and lots of deserving clients to help. Word to the wise: Never bet against the Plaintiffs’ bar! Eventually, they always adapt and overcome. Chad Roberts, eDiscovery CoCounsel, pllc
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Campbell Alexander said:
The question is – what are you going to find if you drill too deep into the murky depths ESI? – evidence which advances my client’s case or destroys it.
We need to learn to use the ePen with caution and dexrerity to skilfully find evidence to win cases… like the influential abolutionist texts winning the slaves their freedom.
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craigball said:
Too deep? Only children believe the monster disappears when you close your eyes. When will lawyers learn that, in discovery, we cannot simply decide to look away from probative, non-privileged evidence in scope? As officers of the Court, our duty is to make reasonably diligent efforts to get to the truth of what happened, why and who is responsible. Rule 26(g) means that, if it means anything. Too, our job is not only to find evidence that wins cases. We are obliged to find the evidence that loses cases, too; evidence that bears on the claims AND defenses.
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Sarena Regazzoni (@sregazzoni) said:
Pulling no punches and offering a necessary critical eye toward our collective responsibility in supporting our system of justice with competence. Without skill in both the law and knowledge about the ever-changing technology that often houses a record of what we say and what we do, we’ll miss out on critical evidence that helps point to the truth. There will always be more work to do, but I am optimistic that the industry is moving toward more proactive and modernized approaches to ediscovery.
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Jay Andrews said:
Craig you still ‘got it’ after all these years. You are and have been my unknowing mentor in eDiscovery since you MC’ed a CLE talk about the first round of changes to the FRCP back in ’06 that I attended as a wide eyed paralegal. At that time you scanned the large, filled to capacity hotel ballroom, and lamented openly about the lack of Plaintiff’s Bar members present at the time. I worked in one of those places that was (is?) ‘getting away with murder’. You are so right about the failure to really learn what that it looks like in everyday practice. The result has lead to an alarming amount of Venture Capital flooding into the sector and created in my opinion fewer good options for vendors, and when you combine that the unfortunate tendency of counsel to defer to the vendor for expertise you lose a lot in the process.
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craigball said:
Thank you, Jay! You had me at “you still ‘got it,’” a question much debated in my household…and I live alone. Highlight of my day, and it’s been a good day.
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