Is there a war on e-discovery? Sounds like a paranoid notion, but the evidence is everywhere. The purpose of discovery is to exchange information bearing on matters in litigation, particularly material tending to prove or disprove the parties’ claims and defenses. The soul of discovery is disclosure of relevant records and communication, limited by privilege and proportionality. So, you’d think the focus of e-discovery would be on where information resides and the forms it takes, on how to preserve it, collect it and produce it. That was what we talked about a decade ago, but, no more.
Now, when I look at the composition of e-discovery education, I’m flummoxed by how the tide has turned to anti-discovery topics. Instructing lawyers how to surface information has been steadily supplanted by how to keep information at bay and defend failures to disclose. There is no balance between supporting the right to obtain information and the right to withhold it.
Proportionality is about limiting the scope of discovery. Privacy and GDPR seek to limit access to information. Cost control is code for circumscribed discovery. Even cybersecurity tends to be positioned to confound discovery. I see discussions of “streamlining” privilege logs that advocate giving as little information as possible about items withheld on claims of privilege. Considering the regularity with which privilege claims are abused, shouldn’t we require greater specificity be brought to logging so that privilege stops being the black hole in which we hide everything we don’t want to hand over? Privilege is anathema to evidence and must be narrowly construed. No one talks about that.
Don’t get me wrong. These are important topics. Discovery needs to be just, speedy and inexpensive. But why do we keep forgetting that there’s a comma in there? Will we ever balance our self-interest in advancing our client’s wishes against our common interest in a justice system that serves everyone?
Even topics not overtly geared to keeping relevant evidence away from opponents tend to accomplish it in practice. So-called “advanced analytics” like predictive coding and other forms of technology-assisted review serve to reduce the risks of suppressing probative information. Too, they systematize turning a blind eye to evidence of growing importance like emoji and social media reactions. I acknowledge TAR’s efficiencies; but we must highlight its shortcomings, too.
Impractical, misplaced and mistimed topics like blockchain, Dark Web and AI serve to eat up time that should be devoted to e-discovery topics about which lawyers still desperately need practical instruction. When was the last time you saw a presentation on how to craft efficient and effective requests for production, or one on data mapping tools and techniques? Contrast that dearth to the copious time we cede to bloviating about proportionality. Conferences spend about four times as much time talking about review than preservation or collection. I challenge anyone to show me topics at major conferences that teach lawyers practical ESI search skills.
How did things get so out of whack? A dozen years ago, we thought that lawyers would need to become competent in e-discovery. What we failed to anticipate was how thoroughly complicit the profession would be in ceding the whole ball of wax to vendors and specialists. “Let us do it for you at your client’s expense” proved an irresistible Lorelei. The economic might of corporations overwhelmed whatever opposition lawyers might have mounted against e-discovery being brought in-house, far from the prying eyes of pesky outside counsel and their silly songs of 26(g).
Then, there’s the sad fact that courthouses are Potemkin villages when it comes to jury trials. Arbitration clauses, ‘expedient’ settlements, liberalized summary judgment standards and dinosaur advocates have all contributed to close the courthouse doors. Evidence little matters when you have no occasion to use it. There’s enough blame to go around, above and below the “v.” Plaintiffs’ practices haven’t kept pace with modern evidence. I’d bet that not one-in-ten plaintiffs’ firms are trained to use an e-discovery platform, whereas the numbers are surely the reverse for defense firms. How many lawyers are still using archaic form requests from the last century?
So, is there a war on e-discovery? Decide for yourself. Look at the agenda of any major e-discovery conference (a few survivors litter the field). Count the hours devoted to practical e-discovery skills that support the finding and turning over of relevant evidence. Now, count the hours devoted to telling lawyers how to limit discovery, challenge discovery, assert proportionality, protect privacy, enforce data security, manage data breaches, delegate discovery to vendors, cut costs or cede their roles to robots. Again, not trivial topics, but out-of-proportion to the ever-greater need for lawyer competency in information technology and electronic evidence.
Who’s winning the war on e-discovery? Not requesting parties. Consider the last round of e-discovery rules amendments. How many were geared to reining in discovery versus fostering the discovery of probative information? The changes to Rule 26 significantly narrowed scope. Rule 37(e) immunized litigants from the consequences of incompetent preservation, breaking the only stick promoting e-discovery competency. The amendments took the teeth out of e-discovery, even seeking to limit the sanctions authority of federal judges–persons so undeserving of discretion that the Founders gave them their jobs for life. Judicial discretion was limited only respecting destruction of electronically stored information. What does that tell you about the war on e-discovery… and the victors?
Interesting side note: Corporations spent more money lobbying for the 2015 e-discovery rules changes than has ever been spent in support of procedural rules amendments since 1939. Final score: Funders 1, Founders 0.
Is the war lost? That depends upon your point of view. One man’s terrorist is another man’s freedom fighter. If you think litigation is legalized extortion and discovery has been weaponized to a criminal degree, then the shift away from e-discovery and open courts is great news for the Chamber of Commerce. Discovery is, after all, a relatively nascent notion. My father practiced law for four years before the Federal Rules existed. Two sitting U.S. Supreme Court Justices were born before discovery in federal courts (Justices Breyer and Ginsburg). Perhap you regard discovery as a failed experiment and open courts a quaint anachronism in this increasingly feudal society of extreme haves and have nots. You may think American Democracy itself a failed experiment. If so, congratulations, you’re winning a lot of battles.
This is where I want to conclude with some optimistic Churchillian huzzah about darkness and dawn and fighting on the beaches. Except, I won’t lie to you. The average practitioner still doesn’t have much use for e-discovery. The pendulum continues to swing away from practical e-discovery education. Fifteen years after the first set of “new” rules and a decade past the discovery debacle of Qualcomm v. Broadcom, there remain no accepted standards for e-discovery competency, nor a standard curriculum or authoritative text. No bars certify e-discovery competency. Apparently, law schools, bar associations and most practicing attorneys see a less digital world coming: one with fewer apps, less technology, perhaps even a return to flip phones and fax machines.
But I see a quite different future, one where there is an almost unimaginable wealth of electronic artifacts that will be evidence so particular and probative that asking witnesses what happened will be almost an afterthought. So, weary and frustrated though I may be at the recalcitrance of my peers to care about ESI competency, I’m not ready to give up yet. Are you?