The real gem (and somewhat buried lead) in Craig Ball’s recent blog entry and comments on the proposed amendments to the FRCP is the sentence “The standard practice of e-discovery is malpractice”. Few observers of the current state of the profession’s eDiscovery (eD) skills employ such bold words, typically tagging in a range from “widespread ignorance” to “gross incompetence” or some other such euphemistic phrasing.
I’m still just an interested observer working on my JD, but the pervasiveness of this sentiment among the pundits and blogsters whose utterings resonate with my own (30+ year) experience with “information” (and its governance, management, legitimate and illicit uses, hidden clues about custodial behaviors (occasionally hijinx), etc. etc.) makes the reality of eD-deficient attorney skills difficult to refute. The annual raft of articles and blog entries about “last year’s big eD developments/what eD in 2014 will look like” provides a plethora of case summaries and exasperated-judge quotes which reinforce the argument.
I applaud Craig Ball’s straight-shooting, unvarnished reference to an “800-pound gorilla” which everyone seems to be aware of but which has now thrived for nearly ten years in the federal arena. If, as Judge Scheindlin succinctly pointed out on a 2009 ESIbytes podcast, “there IS no eDiscovery – ALL discovery is electronic”, it would follow that attorney eD malpractice is manifest in (gulp) at least a statistically-significant percentage of the thousands of cases filed each year.
No one can know how the issue will rise to a level of discourse commensurate with its impact, but if history is an accurate compass, the profession will overcome this latest lag in lawerly command of societal scientific reality: at some point, the average lawyer caught up with the physical metadata of fingerprints and DNA. As Craig convincingly points out, many COST-BASED symptoms of the problem can be more directly addressed by practical tweaks to the proposed amendments. While the rules can certainly help, our system of justice needs stronger efforts among the bench and bar to find practical solutions to the problem (like the eDiscovery liaison role engineered by the Seventh Circuit pilot, the special master eD program in western Pennsylvania, and the groundbreaking research on attorney-versus-technology effectiveness in document review authored by Grossman and Cormack, to name a few). Hopefully, the profession can also become more deliberative about the effect of practitioner eD competence on the other Rule 1 dimensions of SPEEDY and JUST.
