The days of sitting on the floor and going through boxes of documents looking for evidence are over. The manual method of discovery has been replaced by the much faster digital method.
As Ralph C. Losey, author of e-Discovery for Everyone, puts it, “The evidence is in vast clouds of data; paper is just an incidental printout.”
His book covers new methods of search and review, the 2015 amendments to the Federal Rules of Civil procedure, litigation holds, evaluating the reasonableness of e-discovery vendor bills, why cooperation in the process is essential, the ethical issues associated with e-discovery and how to confront e-discovery abuses.
Losey, a full-time specialist in electronic discovery since 2006, is a lawyer with Jackson Lewis P.C., in Orlando and has been involved with e-discovery since the 1990s.
YourABA contacted him to find out more about his book.
You write that e-discovery is filled with ethical landmines. What are some of the biggest?
The biggest is attorney competence. This is why the ABA revised Comment 8 to Rule 1.1, Model Rules of Professional Conduct 1.1. to read as follows: (emphasis added)
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.
Most states have adopted this. Many have gone further and require a specific amount of CLE training in this area each year. The issue of incompetence in e-discovery is a major problem in all states. This is one reason I was motivated to write this book.
Another important but related issue is overdelegation of lawyer responsibilities to e-discovery vendors. In the team approach I have been using for 12 years and advocate for in my book, the lawyer is always in charge and never asks nonlawyers to do his or her job. This overdelegation to vendors is driven by the same competence problem. It raises serious unauthorized practice of law issues, as well as issues under Rule 26(g) where a lawyer must certify that a document production effort was reasonable. How can this be done if the lawyer did not direct and supervise the whole effort? It certainly cannot be done if the lawyer does not even understand what the vendor did. The team approach mitigates the competence challenge, but it must be done right. The lawyers must be schooled and remain in charge of document productions.
The “dirty little secret” of trial lawyers is that they’re incompetent at handling e-discovery, you write. How can this be fixed?
The competence challenge can be fixed in e-discovery the same way it is fixed in all other complex areas of the law. There are no shortcuts or magic pills. An enormous amount of work and effort is required. This means that more and more attorneys will specialize in this field as a necessity. Every law firm needs to have at least one attorney who is well-versed in e-discovery. Typically, that requires that they spend at least a quarter of their time doing e-discovery work. I have been a full-time specialist in e-discovery for 11 years and still learn something new every day. It is that kind of practice. It requires an attorney who likes to learn, make new law and come up with creative solutions.
You liken e-discovery to a vast body of water, where most of it is shallow and not fearful to tread, but some of it is deep and treacherous. What are some examples of the latter?
At this point the things I find most interesting are the most challenging, namely large-scale document review and preservation in large, complex organizations. They are, or should be, the scariest to anyone not specializing in e-discovery. The easiest area to make a mistake right now is in large-scale document reviews. If you do not know what you are doing, you can easily spend too much money on this task. You can also easily miss locating the needle in the haystack of documents that you need to prove your case. Preservation can also be a challenge. Again, you can preserve too much and spend too much, or visa versa. It is better to err on the side of caution with preservation, but the proportional reasonable effort often depends on good knowledge of the client’s IT system and records management. This kind of IT technical knowledge and analysis can be very difficult for most attorneys.
What does the future hold for e-discovery?
There will be a tremendous expansion in the use of artificial intelligence to assist attorneys in finding relevant evidence. The role of human document reviewers will become less and less important. Many will be put out of work. One skilled attorney working with a legal robot, essentially a computer with good active machine-learning algorithms, will be able to do the work of a hundred attorneys. We have already proven this is possible from experiments that my review team and robot have done at the National Institute of Standards and Technology, Text Retrieval Conference (TREC) in 2015 and 2016. The software and methods have already been developed, but the skills needed to work with such robots are very rare. I write about this frequently on my blog, e-DiscoveryTeam.com. I hope everyone will check that out, and also follow me on Twitter where I gives link to information on e-discovery, and lately, about politics, too.