The Importance of eDiscovery Education
Have you ever attempted to explain eDiscovery to a non-legal professional? If you have, you know how difficult it is. Even attorneys struggle to understand eDiscovery. I frequently present CLEs on eDiscovery best practices and often see confused and frightened faces. These are the faces of attorneys too busy juggling stressful caseloads to delve into the intricacies of eDiscovery. However, eDiscovery now permeates every part of practice. If you’re not dealing with eDiscovery, you are in danger of committing malpractice. Yes, malpractice. We have already seen allegations of malpractice due to an alleged eDiscovery misstep in J-M Manufacturing Company, Inc. v. McDermott Will & Emery (California Supreme Court, Los Angeles County — Central District, Case No.: BC 462832). This case has been dubbed “the first eDiscovery malpractice case.” I predict more such cases as eDiscovery becomes more essential.
Even more relevant than the threat of malpractice are the requirements attorneys abide by the ethical expectations of competence when handling eDiscovery. You may remember ABA Model Rule 1.1 on competence. However, the ABA amended the comment to this rule in 2012 to say:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
This language certainly does not mean that lawyers must become experts in technology. However, this overt reference to technology is a clear message they must embrace and incorporate technology into legal practice. The phrase “relevant technology” directs lawyers to educate themselves on the uses and benefits of technology that can provide cost and time efficiencies for you and your clients. Most attorneys know available technology exists for processing and searching data – but how it works, how data is inputted and the form in which the data must be requested and received are key elements in understanding how to use the technology in daily practice.
For example, if an attorney has a general understanding of what it means to process data, she will then be better equipped to discuss and request the proper form of production. If an attorney has a general understanding of simple load files, he will understand the importance of insisting on the particular load file that conforms to your review platform. Additionally, if an attorney understands the capabilities of various types of review software, she will use it to improve her preparation for stages of the case.
eDiscovery seems at times like a moving target. Technological advances and Big Data make an already complicated area even more difficult and intimidating. However, to maintain the knowledge and skill required for competent representation, attorneys must pursue continuing legal education in their practice and in eDiscovery. Too many things can go wrong during the identification, preservation, collection and production of electronically stored information (ESI). Ignoring the intricacies of eDiscovery can make one subject to sanctions, dismissal of claims, adverse inference instructions and, in the worst case, malpractice. Fluency in eDiscovery will allow you to communicate not only with opposing counsel about anticipated ESI, but will also allow you to better communicate with your internal litigation support to more efficiently process and review ESI. The discovery of electronically stored information is essential to your practice and should become routine in every case. Therefore, to uphold your ethical and professional responsibilities, it is imperative that you educate yourself and your firm in eDiscovery.