The practice of law is as dynamic now as it has ever been. The always evolving case law allows for the courts (sometimes slower that we would like) to further adapt to every day society and their legal needs. Things that were not relevant in the legal realm last year, could be the hot topic at issue today. Many experienced lawyers would probably agree that the legal profession has changed dramatically over the past ten years and technology has been a big part of that.
The emergence of eDiscovery with the Zubulake cases in early 2000 was the beginning. But, not even the great foresight that Judge Scheindlin had at the time could have foreseen the influence that technology and more specifically digital information would have on the legal profession a mere ten years later.
As new technologies have emerged, user data has grown exponentially and thus catapulted our digital footprint into the stratosphere. This data can be a problematic for law firms that are not equipped to handle it; and that is where eDiscovery vendors come in.
These experts in the field of Information Governance and the eDiscovery have emerged over the past few years due to the growing need by lawyers and law firms to get past the discovery process. But if there is a need for lawyers to get help with eDiscovery, and there are more and more vendors coming out every year, why aren’t lawyers seeking out their help just yet?
A few reasons why firms aren’t using eDiscovery vendors (yet) as much as they should be could be:
- They don’t know they need it
- They don’t know where to begin the process of understanding it
- They don’t understand the language
They don’t know they need it – The reality is that many firms and attorneys simply aren’t aware of the potential pitfalls that come with not being up to date with eDiscovery knowledge or know-how. The ones that know a “little” bit about it unfortunately know just enough to get themselves in trouble, but not enough to foresee the potential liabilities that their client’s may face.
They don’t know where to begin the process – Those of you that do understand the eDiscovery process know what I mean, it’s like a great big puzzle – just look at the EDRM chart and it speaks for itself. How can we expect an attorney/firm to make sense of what the process entails when they don’t even know the difference (or definition) of what is Identification, Preservation, Collection or Presentation as it relates to the Production of ESI truly means.
They don’t understand the language – This is – I believe, the biggest problem that attorneys and law firms face when it comes to eDiscovery. They simply don’t know the language. If you don’t know the language, how do you know what to ask for?
Let me illustrate what I mean . . .
The following is an explanation of How Car Engines Work and the identifiable basic engine parts needed to make that happen:
“The core of the engine is the cylinder, with the piston moving up and down inside the cylinder. The engine has one cylinder. That is typical of most lawn mowers, but most cars have more than one cylinder (four, six and eight cylinders are common). In a multi-cylinder engine, the cylinders usually are arranged in one of three ways: inline, V or flat (also known as horizontally opposed or boxer). Different configurations have different advantages and disadvantages in terms of smoothness, manufacturing cost and shape characteristics. These advantages and disadvantages make them more suitable for certain vehicles.” (See http://auto.howstuffworks.com/engine2.htm)
This is how most eDiscovery presentations that I’ve seen sound like to most lawyers when they see it for the first time. But let’s look at some key engine parts in more detail.
Spark plug (eg. EDRM Identification Phase)
The spark plug supplies the spark that ignites the air/fuel mixture so that combustion can occur. The spark must happen at just the right moment for things to work properly.
Valves (eg. EDRM Collection Phase)
The intake and exhaust valves open at the proper time to let in air and fuel and to let out exhaust. Note that both valves are closed during compression and combustion so that the combustion chamber is sealed.
Piston (eg. EDRM Processing Phase)
A piston is a cylindrical piece of metal that moves up and down inside the cylinder.
Connecting rod (eg. EDRM Identification Phase)
The connecting rod connects the piston to the crankshaft. It can rotate at both ends so that its angle can change as the piston moves and the crankshaft rotates.
Crankshaft (eg. EDRM Analysis Phase)
The crankshaft turns the piston’s up and down motion into circular motion just like a crank on a jack-in-the-box does.
Sump (eg. EDRM Production Phase)
The sump surrounds the crankshaft. It contains some amount of oil, which collects in the bottom of the sump (the oil pan).
That was really a long way for me to say that I own a car which I drive every single day, but I have no idea how the engine works. If I had to order parts for my engine, I wouldn’t even know where to begin. So what does this all mean? I think that “eDiscovery service providers” need to find a better way to convey their message to their clientele . . . to lawyers. Rather than talking about and impressing them with terms like TAR (Technology Assisted Review) or Predictive Coding in their initial contact, the attention grabbing headline should focus more on four things: benefits, ethics, money and need. How will the firm and client benefit from the services, why it is the ethical thing to do, how it can (undoubtedly) affect the client’s pocketbook, and why they “need” the vendor to assist them through the process.
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