Ride the Lightning

Is There a War on E-Discovery? Craig Ball Thinks There Is

June 6, 2019

One can never accuse our friend Craig Ball of not being blunt. In one of the frankest, starkest posts he has written, he asks, "Have We Lost the War on E-Discovery?" Let me offer several snippets from Craig, because you really need to read the full post. I think the snippets will make you want to read it!

"Now, when I look at the composition of e-discovery education, I’m flummoxed by how the tide has turned to anti-discovery topics. Instructing lawyers how to surface information has been steadily supplanted by how to keep information at bay and defend failures to disclose. There is no balance between supporting the right to obtain information and the right to withhold it."

"Impractical, misplaced and mistimed topics like blockchain, Dark Web and AI serve to eat up time that should be devoted to e-discovery topics about which lawyers still desperately need practical instruction. When was the last time you saw a presentation on how to craft efficient and effective requests for production, or one on data mapping tools and techniques? Contrast that dearth to the copious time we cede to bloviating about proportionality. Conferences spend about four times as much time talking about review than preservation or collection. I challenge anyone to show me topics at major conferences that teach lawyers practical ESI search skills."

"How did things get so out of whack? A dozen years ago, we thought that lawyers would need to become competent in e-discovery. What we failed to anticipate was how thoroughly complicit the profession would be in ceding the whole ball of wax to vendors and specialists. “Let us do it for you at your client’s expense” proved an irresistible Lorelei. The economic might of corporations overwhelmed whatever opposition lawyers might have mounted against e-discovery being brought in-house, far from the prying eyes of pesky outside counsel and their silly songs of 26(g)."

"Then, there’s the sad fact that courthouses are Potemkin villages when it comes to jury trials. Arbitration clauses, ‘expedient’ settlements, liberalized summary judgment standards and dinosaur advocates have all contributed to close the courthouse doors. Evidence little matters when you have no occasion to use it. There’s enough blame to go around, above and below the “v.” Plaintiffs’ practices haven’t kept pace with modern evidence. I’d bet that not one-in-ten plaintiffs’ firms are trained to use an e-discovery platform, whereas the numbers are surely the reverse for defense firms. How many lawyers are still using archaic form requests from the last century?"

"So, is there a war on e-discovery? Decide for yourself. Look at the agenda of any major e-discovery conference (a few survivors litter the field). Count the hours devoted to practical e-discovery skills that support the finding and turning over of relevant evidence. Now, count the hours devoted to telling lawyers how to limit discovery, challenge discovery, assert proportionality, protect privacy, enforce data security, manage data breaches, delegate discovery to vendors, cut costs or cede their roles to robots. Again, not trivial topics, but out-of-proportion to the ever-greater need for lawyer competency in information technology and electronic evidence."

"This is where I want to conclude with some optimistic Churchillian huzzah about darkness and dawn and fighting on the beaches. Except, I won’t lie to you. The average practitioner still doesn’t have much use for e-discovery. The pendulum continues to swing away from practical e-discovery education. Fifteen years after the first set of “new” rules and a decade past the discovery debacle of Qualcomm v. Broadcom, there remain no accepted standards for e-discovery competency, nor a standard curriculum or authoritative text. No bars certify e-discovery competency. Apparently, law schools, bar associations and most practicing attorneys see a less digital world coming: one with fewer apps, less technology, perhaps even a return to flip phones and fax machines."

"But I see a quite different future, one where there is an almost unimaginable wealth of electronic artifacts that will be evidence so particular and probative that asking witnesses what happened will be almost an afterthought. So, weary and frustrated though I may be at the recalcitrance of my peers to care about ESI competency, I’m not ready to give up yet. Are you?"

Well, that was rather more snippets than I'd intended, but that is the power of Craig's writing. Hard to cut stuff out. And though I am not ready to give up, I too am weary and frustrated. Then again, it is at present a wearying and frustrating world – and this is just one small corner of it.

I will try to summon Rebecca of Sunnybrook Farm for my next post!

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