Putting One’s Money…

..in the proximity of one’s pie-hole.

The sweet spot for e-Discovery competence is in the ‘grey space’ between legal knowledge (essentially, amassing evidence on support of claims and defenses) and information management (e.g., governance, custodial behavior, technical aspects of storage and retrieval, etc.).

Michael Arkfeld dwells there. So does Ralph Losey. Maura Grossman ‘tested out’ of the exam, and heck, Craig Ball OWNS the place. And the bench provides (although not nearly sufficient in volume) significant players in pioneering jurists like Scheindlin, Grimm, WaxseFacciola and Peck, among others.

These and other leaders developed their eD cred as an outgrowth of successful legal careers. None were followers, and most are vocal advocates for a much more urgent development of similar skills among their bench and bar brethren. Several have (rightly) felt compelled to take colleagues to task for failing to meet minimum levels of cross-disciplinary acumen required for even the simplest matters of litigious pursuit such as (gasp!) divorces and single-plaintiff employment cases.  Rare, indeed, is the eD blogger or national-circuit speaker who claims that many (let alone ‘most’, or ‘enough’) lawyers wield  “grey space” competence commensurate with their own cases’ IT complexities.

A Two-sided Coin or Venn’s Redhaired Step-child?

Curiously, not nearly as much has been written or said about the skillset populating the other side of the ‘grey  space’. Maybe the rumors of lawyer indifference to, as one pundit put it, “lowly” IT skills (and presumably, the “propeller heads” who practice such craft) are true. Maybe it’s fear – of the acronyms and algorithms, or of losing exclusivity of the exalted position of being “the smartest in the room“, the primary prognosticator of pretrial practice, in solo and (often) in secret. What JD or Esq. would dare suggest that “bit-twisters” and “nerds” could lean into  some mutually beneficial, shared-benefit

Leaning In to the “Grey Space”

shrinking of the “grey space” in some meaningful way, in any reasonable time frame?

Forget that the very heart of the matter – that 3-lettered monster known as “E S I” – contains the terms ‘electronic’ and ‘information’ (but no Latin phrase or Blue Book-indexed terms). Or that some folks (this author included) have filled 30+ year, fulfilling careers slaying the dragons of business use (and mis-use) of information and the electronic technologies that manipulate it. Or that financial executives had their own IT Waterloo a decade ago (remember SarBox?), and the Chief Operating guys a decade earlier with Enterprise Resource (ERP) deployments – each figuring out a way to exploit IT skills and talent for the benefit of their respective enterprise information dilemma.

This e-Discovery problem is different, some have argued. Technology “snuck up” on the lawyers and cold-cocked an entire profession one day in 2006. While virtually everyone else was quietly conquering the technology obstacles that the past 40 or 50 years of business evolution have birthed, the staid and stately world of matters jurisprudent was somehow self-exempt from the dirty technical details of the businesses and individuals who, nonetheless, frequently sought the learned few’s advice when litigants found a foothold in the mix.

It hasn’t helped that many IT professionals find contentment in passive disengagement from the relatively infrequent interruptions stemming from their General Counsels’ courtroom crises. If some senior partner from outside the company is willing to take responsibility for figuring out the vagaries of how a group of users slices, dices, replicates, broadcasts and otherwise manipulates a mountain of electronic information, then there are hundreds of other demands waiting for the attention of IT staffers.

Clouds Forming: Perfect Storm on the Horizon

Whether it’s lawyers delaying some inevitable reconciliation between their own skills and the technical realities of modern business, or technologists forced to confront the differences between masses of  ‘ordinary’ users and those who find themselves designated custodians in the crosshairs of  litigation, one thing is clear – the “grey space” is being squeezed faster and harder than either group is responding. Significant inertia originates from all sides, conspiring to bring an abrupt end to many mid-career litigators’ “honeymoon” with eD and its implications. (Our view of six significant catalysts in the current state-of-the-eD-art, conveyed over the next few posts, lays out the facts of an unexpectedly rapid rise in the pressure to eliminate eD “pretenders”). With apologies to Messrs. Clooney and Wahlberg, et al, the storm brewing in America’s courtrooms promises to sink the practices of unprepared litigators whose blinders mask their naiveté in evolving “grey space” requirements.

So, while the bar-certified leaders in this space implore colleagues to “up their game” and finally develop basic technology skills, the bell has already rung… the gap widens with every Da Silva Moore decision, every Georgetown boot camp, and each disbelieving client who hears their lawyer plead, “Your Honor, this TECHNOLOGY stuff…”. ESI replicates like rabbits on Viagra, information governance continues to get lip service, and the plaintiffs’ bar moves closer to a cogent realization of an intoxicating opportunity.

It’s Up To Each of Us

After a long career in the roiling corporate currents of electronically-stored information (a sizable chunk of which has focused on information-related risk) and over seven years’ of effort exclusively on eD and its issues, this author decided to heed the soothsayers and… lean in from the OTHER side.

With this morning’s email, enrollment in law school  has been achieved.

Is the arduous path to a law degree REALLY necessary? After dozens of CLE-eligible sessions (several as host), after two years’ as a TREC volunteer, after reading (and RE-reading, and OUTLINING, and diagramming and.. well you get the picture) Judge Scheindlin’s casebook and every opinion written by the esteemed members of the bench listed above, and despite countless hours talking, working and collaborating with attorneys in every size firm from single shingles to international behemoths, the fact remains that everyone (me et tu) associated with this fascinatingly unpredictable, exploding world of eD needs to do MORE.

That means, suspending disbelief and too-long held paradigms about how computers should never sully the practice of lawyers. That means, cooperating with today’s adversary AND tomorrow’s by sharing knowledge and practical approaches as an investment in the profession – in accessible, freely-exchanged forums and constituencies from the ABA to Sedona and beyond. That means, LEANING IN to the “grey space”, pushing hard from whichever side you occupy, and expecting – and WELCOMING –  the efforts of professionals on the other side.

Whether you call it “hubris” or simply, chauvinism, it’s time to discard stale beliefs and suspicions about the complexity and sophistication of “those other guys”. We in the eD space are ALL behind the 8-ball, and the scarce population of truly knowledgeable practitioners on both sides (however vocal and motivated) can’t slow the progress of eD’s evolution, let alone  SOLVE the problem.

For a scarred and old (and sometimes cynical) IT guy, that means sucking it up and getting a JD.

What’s the gauntlet in YOUR race to retirement?


About Joe Treese at ESIDence

ESI Governance & Risk Management
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