Fortunes are being made and squandered as courts, counsel and litigants grapple with modern digital evidence. It’s a costly mess, but it needn’t be so, writes Craig Ball
In a process called “e-discovery,” lawyers exchanging electronically stored information (ESI) in litigation face a burgeoning volume of digital evidence characterised by variety, rampant replication and broad distribution. Electronic evidence is everywhere, but the outsize cost of e-discovery flows largely from a mix of ignorance and stubbornness. Litigants don’t understand their own electronically stored information, and lawyers don’t understand ESI generally. Both feel entitled to their limitations, and neither are doing enough to overcome them.
There are two schools of thought in e-discovery. The orthodoxy is that lawyers can’t, and shouldn’t have to, learn information technology. The thinking is that lawyers will always deal with electronic evidence through technical intermediaries--experts and vendors. This view serves almost everyone well. Lawyers needn’t scrutinise their own competency and vendors profit mightily as litigants over-preserve and over-collect data.
“Unfortunately, lawyers are adept at delaying even the inevitable”
People and companies who come to court should not expect their disputes will be resolved justly, expediently and inexpensively. Saddled with digitally incompetent counsel, all they hear about is the risk and what they must pay to keep their names out of the papers.
Lacking the skill to manage ESI, lawyers advise clients to “save everything.” Lacking sophisticated search tools, they apply brute force to the process of finding relevant evidence. Unable to deal with native electronic formats and too dependent on numbered pages, lawyers convert everything to images or paper, doubling or trebling the cost.
But there’s a second school of thought grounded on the radical notion that lawyers can and must learn where information resides, the forms it takes, the useful metadata that surrounds it and effective ways to search, manage and present modern evidence, all without spending so much that no one can afford to turn to the courts to resolve disputes.
Even those who expect the IT-savvy lawyer to emerge don’t agree on how it will happen. Most expect it will occur gradually as younger lawyers weaned on X-Box and Facebook move up the ranks and as law schools add classes in e-discovery.
While new lawyers are less intimidated by technology, the skills they bring aren’t the same as those required in e-discovery. Additionally, there is an entrenched leadership of twenty- and thirty-year lawyers unfamiliar with new technology.
Thus, lawyers must be re-trained—even senior counsel. It’s a task made hard by the reluctance of lawyers of all ages to admit there’s a gaping hole in their skill sets.
There is no going back to a proto-digital age, and no changes to the rules of procedure, nor any form, checklist or software package will forestall the need for attorneys to understand information technology. Persuading lawyers to master electronic information demands both the carrot and the stick.
Judges wield the stick through sanctions. Despite the headlines, judges do not sit like Zeus on high, raining sanctions down upon diligent litigants. In fact, judges issue sanctions with the utmost reluctance and hate spending time on sanctions hearings. You are statistically more likely to be struck by lightning than to be sanctioned for e-discovery misconduct. With fewer cases being tried, courts have fewer opportunities to guide the development of the law, but they can do so through sanctions decisions. So, let’s not rein judges in. Instead, educate them in ESI, and urge them to manage discovery with a strong arm and a ready fist.
Clients also wield the stick, and some have begun to question why they must pay their lawyers to hire experts for guidance the lawyers’ training and experience should, by rights, supply. Clients are wising up to lawyers who recommend absurd preservation protocols, unable to distinguish the digital wheat from the chaff, and to lawyers who can’t deal with electronically stored information in its native forms, instead requiring it be reduced to page images or printouts at huge cost and fed to legions of bored reviewers. Clients use information technology to achieve efficiencies, and they expect their lawyers to do the same.
Education is the only permanent solution to the waste and abuse attendant to e-discovery, but there are structural hurdles. Like law, information technology is a deep and broad subject that demands time and diligence to master. Yet today, there’s hardly any place a lawyer can go to study information technology with the depth and context suited to litigation. Instead, lawyers partake of the occasional one-hour e-discovery program at continuing education conclaves. Serious instruction must be made available to lawyers serious about understanding digital evidence.
Another impediment is the paucity of affordable, intuitive, e-discovery tools. Tools are teachers, helping users develop and master new skills. When a lawyer has the tools to view and search electronic evidence in native formats, no money need be spent converting it to images or paper. When lawyers have the tools to look at data quickly and cheaply, they’ll explore new sources and forms of information, gathering new intelligence and making short work of what’s not relevant.
Crucially, when tools are inexpensive enough that everyone can afford them, they become a means to communicate and collaborate. Opponents who share a common platform can work together to resolve a bad search or jointly view data that impacts the value of the case. Common platforms help solve problems with forms of production, identification of documents and inadvertent corruption of evidence, all with less reliance on intermediaries. Lawyers get back in touch with the evidence.
Desktop tools in the hands of tech-savvy lawyers support the ability to quickly dive into rich data samples from key players. Rapid assessment tools help lawyers pick up the lingo, the unique argot of a case and discern roles and relationships of key players. Lawyers can flush out the noisy keywords and common misspellings that explode the cost of e-discovery and assemble “seed sets” of relevant or privileged documents needed to “train” labour-saving computer-assisted search systems that eliminate costly human review of large document collections.
Lawyers, and even judges, will become end users of such tools. It's inevitable. Unfortunately, lawyers are adept at delaying even the inevitable.
It’s a delay that’s enormously advantageous to law firms who profit from deploying legions of warm bodies to review documents. Over-preservation, over-collection and inefficient search beef up these firms’ bottom lines. It won’t end until clients and courts insist that lawyers become truly skilled in marshaling digital evidence and adept using tools to sample, simplify and search electronically stored information.
Craig Ball is board certified trial lawyer and law professor based in Austin, Texas, who limits his practice to service as a court-appointed special master in electronic discovery and consultant in computer forensics. He was in Australia attending the Nuix Exchange in November