E-Discovery is a hot topic in the legal profession these days, as law firms struggle to follow ever-evolving e-discovery processes, manage large stores of data, and keep discovery within budget at the same time. As the demands of e-discovery on firms continue to grow, it is becoming more important than ever for early-career lawyers to understand e-discovery technologies and best practices.
“Students traditionally shy away from e-discovery viewing it as ‘too techie’ or ‘litigation support,’ rather than being a bright pathway of career opportunities,” said Michele Lange, lawyer and Director of Thought Leadership and Industry Relations at Kroll Ontrack.
As evidence increasingly moves online, Lange said those who think of e-discovery as ancillary to attorneys’ day-to-day work ought to reconsider.
“All lawyers need to understand such things as metadata and how to protect against unauthorized disclosure of or access to information relating to their clients,” said Lange. “Litigators, in particular, need to understand digital information, because that is where virtually all the evidence is today.”
Lange said insufficient knowledge about e-discovery could put clients at a strategic disadvantage and drive up litigation costs, making attorneys with advanced understanding of e-discovery highly desirable.
“It is compulsory for law firms to staff highly specialized legal professionals to define the e-discovery strategy with the client, project manage the ERDM (Electronic Discovery Reference Model) process, negotiate with the opposing party, and position arguments to the court,” said Lange.
Primary E-Discovery Management Concerns at Law Firms
Lange’s emphasis on the importance of early-career lawyers getting a firm grasp on e-discovery was echoed in a September 2014 survey by BDO Consulting. BDO asked 100 senior in-house counsel “What Matters Most In E-Discovery Management.” Attorneys surveyed gave their internal teams an e-discovery effectiveness grade of 6.5 out of 10 on average, citing understanding potentially responsive evidence in a case, predicting e-discovery costs, and containing costs as primary concerns. Attorneys also listed figuring out how to manage growing mobile and social media data and staying on top of new regulations among their top priorities.
“The legal profession is facing unprecedented challenges posed by ESI (electronically stored information) from new technologies and applications that are proliferating at the speed of light—including smart phones, Google Glass, Apple Watch, Wickr, Snapchat, and Cyber Dust, to name but a few,” Said Maura Grossman, e-discovery professor at Columbia Law School and Georgetown University Law Center.
Grossman said most lawyers are still ill equipped to handle digital information and will be overwhelmed by what is yet to come.
“For the foreseeable future, we can expect the bench and bar to struggle with technological change that will far outstrip the ability of the law to keep pace,” she said.
Lange added that with the explosion in data for e-discovery, cyber security should also be at the forefront of all current and future lawyers’ minds.
“Law firms by their very nature handle highly sensitive information about their clients, and it is their most important job to keep that information confidential,” she said. “It is now critical to consider cyber security questions such as how data is stored and maintained, who has access to that data, and how is access to that data controlled, among others.”
E-Discovery in the Classroom
Both Lange and Grossman agreed that e-discovery education should be a top priority for law students.
Lange said students should seriously consider e-discovery offerings when choosing a law school and plan to seek outside opportunities to learn about e-discovery, such as external certifications, if their college lacks the courses they need. She said in the future all law schools will need to work e-discovery offerings into their curricula.
“This could be done in a number of ways,” said Lange, “including making e-discovery a mandatory course for litigation track law students or providing a robust e-discovery module in the basic civil procedure course.”
Grossman and Lange said it’s important for students to have both an understanding of e-discovery case law and exposure to people working in the field, such as representatives from law firms, software providers, or the government.
“I do make an effort to impart concrete skills that students can apply, such as competence in the search of large volumes of electronically stored information (ESI),” said Grossman describing her e-discovery course. Grossman said she makes interviewing outside e-discovery experts a part of her classes. She also has students practice meet and confer with adverse parties, wherein before certain discovery motions lawyers meet to try and resolve points of conflict.
Grossman said that in the future the role lawyers will have to play in e-discovery will vary by firm, with some firms choosing to internalize much of the e-discovery process and others partnering with outside service providers.
“One thing that is clear is that lawyers that are competent in managing large volumes of data, in effective and cost efficient ways, will have an advantage over their competitors,” she said.
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