Archive for March, 2009|Monthly archive page

Judge Scheindlin and Ralph Losey Talk ED-ucation

The e-discovery education discussion ramped up consideraby last week when Judge Shira Scheindlin and Ralph Losey did a one-hour audio podcast on the subject. The full text of the talk can be found on Ralphs blog at and it is fascinating reading but there were several comments  made that I think bear specia mention. 

The first was Judge Scheindlin mentioning that she and Professor Daniel Capra have written a supplement to their ED casebook entitled Supplementary Materials on Electronic Discovery: For Use in Civil Procedure Courses. It is essentially a slimmed down version of the full book and has been released by West as part of its Nutshell series. It is designed to simplify e-discovery for general practitioners and be used as an educational tool in short classes or as part of a larger course, as the title implies.  I’ve already ordered my copy and encourage you to do the same ….. it’s gone right to the top of our ED reading list.

Second is a quote from Judge Scheindlin I found of interest:  “We used to say there’s e-discovery as if it was a subset of all discovery. But now there’s no other discovery”

Now with all due respect to the Judge, I have to disagree. First, of course, we still have Depositions and Request for Admissions and Subpeona Dices Tecum and …well, you get the point.  But also, down here in the the streets and out here in the fields, if I may mix a musical metaphor, where the people who don’t make it into Federal court with mega-milion dollar cases are, to paraphrase  Chris Berman , rumblin and stumblin through plentiful paper productions, it’s not all about e-discovery at all.

All those general practitioners Ralph mentions on his bog are working with general counsel and city attorneys who still haven’t entered the digital era and routinely practice with bankers boxes of paper and not jewel cases of CD’s.  I live in New Orleans … believe me, it’s true.

And that’s the part of the education system that’s missing I think. Those people need the Judges new book …but first they need a discussion about technoogy in general. Ralph and the Judge mentiona t one point that this isn’t so necessary becaue the new generation is computer savvy. Well yes but they are still the NEW generation. What about the NOW generation?  

Well there’s hope yet for todays lawyers.  At least in New Orleans. Tomorrow, I’ll be speaking with local attorney Ernie Svenson at the Louisiana State Bar Association second annual Solo & Small Firm Conference  in New Orleans and our subject is  Electronic Discovery for Solos & Small Firms.    We’ll be mentioning Ralph and Craig and Judge Scheindlins latest opinion  …  come on down if you’re town.


Required Reading

The responses to Craig Balls post on educating attorneys have been quite interesting. Overall, his query “Do they go to a community night course on computers? Pursue online education? Wait for the next Georgetown Academy? “  garnered many emails saying “all of the above”.  As Browning Marean of DLA Piper noted, there is no general technology educational resource for attorneys and it is unlikely that there ever will be, first because the field is constantly changing and no clear standards have yet to emerge and second because of the reluctance of traditional legal educational insitutions to undertake any form of “vocational” training. His suggestion is a constant monitoring of ED websites and among his favorites are the KL Gates case law siteAlltopRalph Loseys site and the EDRM  web page.  To that list I’d add EDD Update, Unfiltered Orange and the very new eLaw Exchange from Mike Arkfeld.
But as the discussion continued to evolve,  Craig himself asked a more pointed question, saying “All the suggestions thus far are great, but to be clear, I was thinking about the absence of a reading list for those seeking to master the technology of ESI.  Where does a lawyer go beyond a “How Things Work” book series?”
Well first of all, I don’t think there is a “How Things Work” book series for lawyers. I’ve been doing a series of CLE sessions for two years in Mississippi and Louisiana as part of my pro bono efforts on this topic and Browning and I have been attempting to assemble a curriculum of webinars and podcast on that very topic, but to date there is no centralized resource on this topic that I know of which is designed for the legal community.
But with respect to ED specific books, here is the list that has been suggested so far, with recommendations from Browning, Craig, Ralph Losey, George Rudoy and Rob Robinson

“Introduction to E-Discovery: New Cases, Ideas, and Techniques” Ralph Losey (ABA 2009)

“Electronic Discovery and Records Management Guide” Browning Marean. Mary Pat Poteet and Jay Grenig  (Thomson 2008)

“Riding the Waves of Culture: Understanding Cultural Diversity in Business”  Fons Trompenaars (Nicholas Brealey Publishing 1996

“A Process of Illumination:  The Practical Guide To Electronic Discovery” Mary Mack (FIOS 2008 )

“The Electronic Evidence and Discovery Handbook” Sharon Nelson, Bruce Olson, and John Simek (ABA 2007)

“The Discovery Revolution” George Paul and Bruce H. Nearon (ABA 2006)

“e-Discovery: Current Trends and Cases” Ralph Losey  (ABA 2008)

“Electronic Discovery and Evidence” Michael Arkfeld (Law Partner Publishing 2008)

IT Reading List for Attorneys

Craig Ball made a great point in responding to my post about educating lawyers when he said  “We not only need to persuade lawyers to take the plunge, we need to insure there’s a pool for them to jump into. By that I mean, there just isn’t a clear path to accessible resources for the lawyer who wants to get a handle on the technology. Do they go to a community night course on computers? Pursue online education? Wait for the next Georgetown Academy?  I don’t think I’ve even seen a really good reading list on the topic (and much as I’d like for it to be, consuming the offerings on my web site isn’t enough). “

So how about it folks.  What are the books (or other resources) that you recommend for attorneys trying to get tech literate?  Send me your recommendations and I’ll post them here.

Attorneys Need to Go Back To School Before Going Native

I was a bit surprised that native files were not as much a topic of discussion during the EDRR Conference in Los Angeles last week as was the ongoing topic of e-discovery education and expertise.  Panelists were talking again and again about the the need for acquiring repeatable defensible processes to justify their positions in court.  Judge Carl West  went so far as to note that he’s often seeing technology experts for both sides at hearings and he is urging parties to make their experts ‘dance geek to geek’ before they appear in front of him.

This topic is a continuation of the comments made by Judge John Facciola  at the LegalTech conference in New York several weeks ago.  Both Craig Ball and I comment on the presentation in this months issue of Law Technology, which also features an article on technological incompetence  called “No Excuses“, by another independent consultant, Joe Howie.

Joe quotes Ralph Losey as  saying that the situation is so bad that  “Some experts believe that attorney incompetence in e-discovery is so widespread that it presents a massive ethical crisis across the entire legal profession.”  Well, no wonder if you read the results of the latest ILTA Law Department Survey, which reports a degree of technology usage that Ron Friedmann, in reporting on the survey,  describes as both “shocking” and “frightening”.

The responses from 22 ILTA member legal departments (82% of the respondents came from the corporate sector, with the other 18% comprising government and not-for-profit entities) showed that 41% do not use a ”litigation support” tool inhouse , 45% do not use an e-discovery product or service and 68% have not “deployed tools with your organization (outside of legal) to prepare for discovery requests”.

How on earth are these people going to effectively manage e-discovery requests made of their organization when they have no in-house tools to assist them?  The traditional answer has been to pass that repsonsibility to outside counsel but in todays economy that solution is becoming less and less attractive.  And if even if they do ask outside counsel to manage that process ( a request that flies in the face of the ever-growing demand for Earl Case Assesment tools) how can they coordinate or even monitor that work without any in-house tools?  

Frightening indeed.  Because as Joe puts it, “… if vendors and outside counsel have a vested financial interest in selling the maximum amount of processing and review time, then in-house counsel may have to take the lead…”  in implementing new technologies.  Hard to believe they can do that given the results of this survey.

Judge Facciola suggested that the reason for this low level of technological competency is pure stubborness on the part of attorneys to learn something new and that lawyers should be continually tested for technical competence.   Which leads Joe to ask, “Should individual courts require a demonstration of technical competency under their own local rules, perhaps by written exam?”   As I’ve noted in an earlier post, there are precedents for such a test in some of the federal courts with limited jurisdiction and if attorneys don’t listen to these pointed comments of frustration from judges, they will soon be seeing them in ALL federal courts.

So it was heartening at the conference to hear people like Browning Marean calling once again for more technolgy training for lawyers. And know that people like Ralph are constantly extolling the need for more technology training at law schools while Craig Ball and George Rudoy push for more programs like the ED Training Acadamy at Georgetown Law School.

Sharpen up those pencils kids …. it’s time to go back to school. Or fire those luddites and hire people who will.