Most people outside the legal profession don’t know the incredible amount of work that goes in to a lawsuit before settlement negotiations or courtroom procedure begins. A major part of this process is discovery, defined by our legal dictionary as “devices that can be used by one party to obtain facts and information about the case from the other party in order to assist the party’s preparation for trial,” including depositions, written interrogatories, and the production of important documents. Discovery has always been a complicated process, but due to the relatively recent rise of computer domination, eDiscovery — which involves the production of information from technological sources — can be even trickier.
That’s why we asked Diane Barry, director of discovery strategy and management for International Litigation Services, to explain some of the most common obstacles to efficient eDiscovery and some of the roles a lawyer is expected to fulfill for his or her client when it comes to eDiscovery. Take a look:
GJEL: What are the biggest obstacles to ethics in eDiscovery?
Diane Barry: It usually starts with a “whisper-down-the-lane” problem – where there are too many persons between the source of the information about the ESI, and the counsel who has to describe it to opposing counsel and the court. You need to have a good conversation with your client at the outset of the matter regarding what they have and what you want to offer up in discovery. You need to make a responsible plan. For example, no matter what the client has, eDiscovery will be different in a multimillion dollar lawsuit than it will be in a small divorce action. However, it always needs to begin in a good relationship with your client. You need to have a good understanding of what there is and any problems or issues. If this conversation is good, all downstream activities begin with a good foundation. When that fails, everything downstream is immeasurably more difficult and sometimes dangerous.
California says that I have a responsibility to assist my client with discovery and to be involved ion helping them make decisions about discovery. This duty can play out in different ways with different clients: sometimes the client prefers that I take control of gathering the items; sometimes they take the lead while I monitor their progress; some fall in between these two points . However, California law says that I have to take steps to be informed so that I can do my job with regards to opposing counsel and the court. Unless I have good information, I can’t accurately inform opposing counsel and reasonably negotiate discovery obligations. Without good information, I cannot make accurate representations to the court. Most of the sanctions cases we see are founded this kind of communication problem. Counsel didn’t know or didn’t understand what the client had and misrepresentations were made to opposing counsel and the court about what was available.
GJEL: Are clients generally reluctant to participate in eDiscovery.
DB: It is possible to engage in cost efficient eDiscovery. Clients don’t generally see that that is what’s going on. Clients often view eDiscovery as an expensive optional addition to the discovery process, not as an integral part of the case itself. This is a misconception. Given how individuals communicate, and how businesses operate, eDiscovery is where the case begins. Because of computer tools, smaller businesses are doing more business and are generating many more records than was true 20 years ago. Even a fairly small client is now generating much more in the way of business records than a similar business 20 years ago. For example, the average office worker receives somewhere between 50 and 200 emails a day. The average worker never received that much mail in paper correspondence. The amount of information and the sheer number of records has grown by leaps and bounds. eDiscovery is where you see what actually happened.
Dealing with this information as data can actually save the client money over the costs of dealing with it as paper or a paper equivalent. Bulk information is much easier to sort and use when it is in a data format rather than a paper format. Data can be searched, sorted, organized, etc. much more cheaply than paper or paper equivalents. Dealing this information as data is much less expensive.
GJEL: What can lawyers do to warm their clients up to the idea?
DB: One of the conversations I’ve had with clients is about how using data can ease costs, particularly those associated with attorney privilege and relevance review. The most expensive portion of any discovery matter is the attorney review. A KPMG study showed that 70 cents on the litigation dollar is spent from collections to pushing the information out the door to opposing counsel. Of that, 80 percent is the attorney review. Digitized information is much easier and less expensive to use. It enables the attorneys to avoid pushing everything through a hands on, page by page attorney review. There are going to be items that you can search for and identify without full on review if you use the computer tools. You can’t separate privileged and non privileged information as easily when you’re working with paper documents. Computers make this much easier, faster, less expensive. In fact, properly planned, all downstream tasks are made less expensive through the use of digitized data rather than paper documents. This is true whether the case is large or small.
GJEL: In your presentation, I was struck by your isolation of two reasons attorneys don’t typically engage in eDiscovery: lack of tech prowess and lack of time. Can you elaborate on that a little?
DB: Learning new technologies can be difficult. The institutional culture at the law firm militates against it. At most law firms, training time is not billable time. Therefore whatever we learn as our first way of doing something, we hate learning a new way to do it because the billable hour is God at most law firms. There is a systemic problem with trying to take on new technologies and learning new ways of them. Most of us were not computer science majors in college and most did not work with computers in law school. We are comfortable with email and using our computer as a typewriter, but beyond that we are not comfortable. A great number of people really resent the fact that the practice requires them to be more technologically oriented. Many legal practitioners were not interested in technology and aren’t now. But you must either have minimal competency or associate with someone who does.
GJEL: Do you think the lack of tech prowess will naturally decrease as more people who grew up with technology become lawyers?
DB: Yes and no. There are going to be more people who are more comfortable with their computer but the technologies associated with eDiscovery are always going to be particular. People are going to have an easier time understanding computers as business tools. But if you go to the website www.edrm.net, and look at the eDiscovery reference model, these skills will only help with the identification step. The tools to collect, process and review eDiscovery items change every three to six months. The two areas that move the fastest are the number of software programs that create and store information (the systems being used by the clients), and the tools that exist in the eDiscovery industry to collect and analyze this information. I think that we will get more practitioners who will be more comfortable with the ubiquity of technology tools, and therefore easier with the first step of talking to their clients about ESI systems and eDiscovery. They themselves are computer users and will be more comfortable about talking systems etc. with the clients. However, past that, change will not come naturally. These tools are also not the usual ones at use by ordinary users. Unless they seek them out, they won’t come across them. The evolution of eDiscovery software is particular and quick. It’s very difficult to keep up with the tools available unless you put a fair amount of regular time and effort into it.
I became interested in eDiscovery after talking my way out of calculus by agreeing to take computer science and logic classes in college. And it came in handy. But most people do not have this experience and don’t know the details of computer software. Anything past that first conversation with the client is going to require commitment or an interest in the subject matter. And, you can still choose to be interested or not. It’s still counsel’s choice of how involved they wish to be in all of this. The state of California stipulates three ways in which a lawyer can be competent: to already be, to bring yourself up to speed, or to associate with competency. We do that in the legal field all the time. I would not be a competent bankruptcy lawyer, for example, but I work with them. You have to decide which of those three groups you are, and whether you wish to progress towards another group or not. I started out in group three but over time and with study, I became competent enough to be in group one much of the time. I still seek assistance to be competent regarding esoteric items such as customized databases.
GJEL: I saw a National Law Journal article yesterday which asked whether information on social media platforms is discoverable under current laws. Do you have some perspective on this?
DB: It absolutely is. This is coming more into play. You have to learn to work with the Historic Communication Act. If I send Facebook a subpoena they are not permitted by law to respond. The person whose account it is has to sign a waiver that I then send to Facebook and they will give me the information. There are ways of doing it legally. So you need to bring yourself up to speed and work with it.
From an attorney ethical point of view, consider the hypothetical where a party opponent has a Facebook page. Can you friend them to get a closer look at their information? The answer is that you can look at someone’s public profile, but you cannot friend them to get a closer look. Sending a “friending” request is contacting a party opponent. If I know they have counsel I cannot friend them or ask someone to friend them to get a closer connection to their page. It’s contacting a party represented by counsel. It’s the difference between driving by someone’s house and walking up and knocking on their door. You are allowed to do a Facebook drive by but you may not knock on their door and ask for a closer look.
Photo credit: Rutger de Moddertukker