Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, Part Three
Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems. He has also been a great addition to our webinar program, participating with me on several recent webinars. Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31. Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog. Enjoy! – Doug
How Can We Change the Situation?
To begin to answer that question, let’s take a look at the ethical obligation that lawyers have to be technically competent and the state of technology education for lawyers today.
a. Technical Competence
First let’s acknowledge that we have an ethical obligation to be technically competent. Perhaps we always did. As one of my good friends in the Louisiana Bar Association pointed out to me when I asked why the LSBA hadn’t produced a specific rule for such a duty, “well we always just assumed it was just part of the general duty of competence. We didn’t issue that sort of rule when the telephone came out, or the fax machine, or the telegraph or the car. We figured the benefits of technology were both necessary AND apparent.”
And certainly at least one judge has felt this way for quite some time. In Mancia v. Mayflower Textile Services Co., Judge Paul Grimm used a detailed examination of Rule 26(g), Fed. R. Civ. P., which requires every discovery disclosure, request, response or objection be signed by an attorney of record. The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the request is reasonable and the disclosure is complete and correct. In Judge Grimm’s opinion, he calls Rule 26(g) is “the least understood or followed of the discovery rules.” and he clearly states that much of the blame for high priced e-discovery costs lies here. Not following a clearly defined ethical duty. Or as I once wrote, hey shankapotamous, read the rule book.
But even so, in 2012 the ABA issued a model rule on the issue in its Model Rules of Professional Conduct and, so far, 32 states have adopted a similar rule. You can read more about that on Bob Ambrogi’s LawSites blog site here.
But what do we do to gain technical competence. How do we become what Craig Ball has called Homo Electronicus?
Certainly, we can do so, right? We’re lawyers. We’re smart. We can do things.
Well, not if law schools have anything to say about it. Browning Marean and I spent years trying to begin a law school curriculum that included computer education with no success. Why? Because legal education still has its own old paradigm. The one that working with a keyboard is not “professional” and is best done by support staff and hourly employees. You know, secretary types.
We were actually told by the dean of one leading law school when we spoke to him about a legal technology training initiative, “We train architects, not carpenters.”
Great attitude Dean. You might want to tell those architects that they don’t have to use slide rules any longer.
And that’s the second part of the problem. Even with schools that have begrudgingly started eDiscovery courses. (And the number of those being taught by full time faculty as part of the standard curriculum can be counted on … ok, two hands) But the threshold question here is not knowledge of eDiscovery technology, it’s the lack of the most basic computer technical knowledge.
Because where many people commenting on this subject see it as a parable for why we should be using concept searching in eDiscovery matters I see it just another example of attorneys caught in the old paradigm of working with paper documents and being totally unaware of the most basic technical concepts. Law students need a good case book on eDiscovery, sure but first they need a discussion about technology in general. Some commentators say this isn’t really necessary because the new generation is computer savvy. Well maybe. If by tech savvy you mean they can check email and do legal research. But even if they are tech savvy, they are still the new generation. What about the NOW generation?
What can we do about it? Judge Facciola once suggested some form of national technology competency standards. Seem like fanciful speculation? Well, remember that all bankruptcy practitioners must take a 2-hour course in the ECF system before they can file documents because electronic filing of documents is required in all bankruptcy courts. Why then could courts not institute a similar requirement before they allow an attorney to file a motion involving eDiscovery?
Some Judges have indeed adopted local rules to that effect but the lack of action by law schools and bar associations is the real failing here. Heck, if an eDiscovery question started appearing on bar exams, you be darn sure law schools would start teaching it.
We’ll publish Part 4 – What are Some Good Resources to Help Lawyers Improve their Technology Expertise? – next Monday.
So, what do you think? Do you think that lawyers are where they need to be in becoming technologically proficient? As always, please share any comments you might have or if you’d like to know more about a particular topic.
Happy Thanksgiving from CloudNine!
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