Changing the Conversation in eDiscovery: Part 1

Changing the Conversation in eDiscovery: Part 1

Changing the Conversation in eDiscovery: Part 1 150 150 Rakesh Madhava

Nextpoint Conversations

CONVERSATIONS WITH: Alitia Faccone + Rakesh Madhava

Nextpoint’s “Conversations With” is a feature offering insights from two or more industry insiders in a “panel-style” discussion around a specific topic area. Expect a lively and thought-provoking reportée and check back regularly for installments. To read the whole series, here is Part 2Part 3Part 4Part 5, andPart 6. 

Installment #1 by Rakesh Madhava

The One Percent Chatterers

The electronic discovery industry is a funny place. On one hand, there are the small group of experts – I like to call them the “one percenters”– most of whom I’ve met. It’s a brilliant group, some of the best minds in the legal industry identifying the myriad of complexities and challenges electronic data presents to the traditional legal process. I look forward to seeing them at industry events and have learned an immense amount about the legal challenges – an important education for me since I’m not a lawyer.
On the other hand, you have the other 99 percent – the unwashed masses of eDiscovery. These are lawyers and legal professionals whose work is directly impacted by eDiscovery, but are too busy managing their practices to really understand the challenges. For example, one partner I know at an AmLaw 10 firm (a litigator no less) thought his team had no obligation whatsoever to save emails.
Then there’s the time an AmLaw 200 litigator informed me, “we don’t need a database.” He assumed one of his staff would simply supply him with the documents he needed for a case. I am not sure what his plan was for what one would do with the documents – perhaps put them in Redweld folders. Interestingly, he informed me of this via email. Sadly, these anecdotes are endless.
So on the one hand, industry insiders are obsessed with what to call advanced search technology – predictive coding, machine learning, or, heaven help us, PC-TAR.  These folks are dropping into court to see the Kleen lawsuit then debating over who scored more points.
I love these folks. We need them to keep pushing ahead on the cutting edge. (They could stop with the acronyms but that’s part of the fun of being an early adopter right?) Unfortunately, the litigators with active eDiscovery practices are being left out of the conversation.

The Ninety-Nine Percent Suffers

The stunning reality of the legal industry today is that attorneys still are not aware of the basic changes to discovery when it’s electronic. In fact, according to this year’s ABA Legal Technology Survey, of 650 firms who responded to the survey, only a quarter have any kind of formal eDiscovery initiative in place.
A full 45 percent of attorneys have NEVER sent an eDiscovery request on behalf of a client. Most lawyers don’t even have a basic familiarity with eDiscovery, let alone an opinion on what to call advanced search protocols.
The Florida Supreme Court just passed formal rules regarding electronic discovery, effective at the beginning of September. That’s almost six years since the Federal Rules were changed.
Even worse, very few law schools even teach eDiscovery, meaning the next generation of lawyers is not getting properly trained in this area. As Above the Law recently documented, there is an attitude among many that eDiscovery is a frivolous field of study. This all means there is a lack of awareness within firms of all sizes that an eDiscovery obligation exists. That is why embarrassing eDiscovery failures continue to happen, even in the largest cases.

The first in a series of posts about changing this dynamic

Alitia Faccone, partner with McCarter & English in New Jersey will join me in this discussion. She is one of those lawyers working on the eDiscovery front lines, and will help us broaden the discussion to include the topics our pundit class is ignoring. Litigators certainly are interested in the hot topics and buzzwords of the industry, but their world is also a lot more complex and colorful than one might assume by listening to only the industry thought leaders.