Finding a Way Together Out of the e-Discovery Morass
By Bob Little
Chief Marketing Officer
RenewData
I read with great interest two of Ralph Losey’s recent blogs.
The first, "Trial Lawyers Turn a Blind Eye to the True Cause of the e-Discovery Morass", discusses the Interim Report & 2008 Litigation Survey, a joint project of the American College of Trial Lawyers task force on discovery and the Institute for the Advancement of the American Legal System, The thrust of the report is a “concern that discovery is increasingly expensive and that the expense and burden of discovery are having substantial adverse effects on the civil justice system.” The report lays the blame for this on the new rules for discovery and a lack of control exercised over the process by the judiciary.
Ralph makes the case for including a lack of technical competency by trial attorneys as a key contributing factor. “We need to admit that most of us are deficient in understanding the new technologies that drive today’s world. As a consequence, we no longer understand the technological media in which our clients operate. We do not understand the evidence crucial to the outcome of most cases. We do not know where to find it, nor how to gather it, nor how to look at it properly when we do.”
Ralph goes on, “We have delegated too much to e-discovery vendors, some of whom are driven by immediate profit motives, not the best interests of justice and efficient dispute resolution.” As a representative of one of those vendors, I have to acknowledge the truth behind that statement. And just as Ralph applies Walt Kelly’s famous insight to his fellow members of the bar, we have to also accept that “We have met the enemy and he is us.” Read my own recent blog on just this subject.
Ralph's second blog, "Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery", deals with the related topic of ethical conduct in eDiscovery. I was intrigued with his discussion of the American Bar Association’s Model Rules of Professional Conduct, in particular his take on Rule 1.1 and the impact lack of technical knowledge has on the balance required in maintaining legal ethics. Ralph makes a suggestion that law schools and firms need to address the lack of technical knowledge directly by requiring appropriate training.
I certainly agree that this is needed. However, I think there are critical interim steps that can be taken. There are vendors in the community who have established solid credentials and reputations. There are progressive organizations, such as RenewData, who have made strong committments to excellence and transparency in process and pricing. Now is the time for a true partnership between law firms and the discovery companies. This means that law firms must be willing to focus on more than price as a means of selecting technology partners. And discovery firms must aim at earning long term relationships as trusted advisors, not merely as opportunistic vendors.
eDiscovery and technology are here to stay. Together, the legal community and knowledgeable eDiscovery firms can establish a new type of relationship that builds upon their respective expertise to find our way out of the discovery morass.
Well said.