Time To Change Your eDiscovery Mindset

New columnist Kelly Twigger dispels a few myths about ediscovery.

Well, it’s happened. ATL has asked me to write about ediscovery, a topic that many lawyers are tired of hearing about, but continues to loom large. Electronic discovery is the most substantive change to the practice of law in more than 100 years, yet many relegate it to the backseat by equating it simply with data and deeming it a litigation support issue.

You couldn’t be more wrong.

We are living in a world where the lawyer’s job is now to understand where discoverable information may exist, make sure it’s kept when necessary, and to know enough to ask for what you need from the other side. Discovery strategy, now ediscovery strategy, is even more important and complex now that we are dealing with volumes of data and multiple sources to look at for each case.

Just this week we saw a fight between Twitter and the federal government over the identity of a Twitter user posting “unfavorable” content about the Trump administration, and Congress eliminating restrictions on ISPs’ access to your browser history and what they can do with it. While those may not seem like ediscovery issues that you need to pay attention to, the identity of a user on social media and who has access to your client’s browser history may become issues in one of your cases. Or you may want to get that information.

The point is that everything is happening electronically, and you need to start paying attention so you can ask for and get that information in discovery.

Let’s dispel a few myths about ediscovery:

• Whether you want to call it ediscovery or just discovery of ESI (electronically stored information), ediscovery is here to stay. I prefer the “e,” because as you’ll see in future articles, the approach to discovery with ESI needs to be completely different than what you are used to doing, and we need to get you thinking the right way.
• Yes, you are ethically obligated to figure this out for your cases. You are required to provide competent representation, and that means advising your clients on how to preserve ESI, thinking about where ESI lives that may be relevant for your cases, being able to go and get it, and to get it admitted into evidence. California laid out its ethical obligations for lawyers very effectively in its July 2015 opinion.
• No, it does not matter how big your client is (corporation vs. individual) or how much money your client has, although I will provide some tips about how to do things on a budget.
• Yes, you will have to keep learning. Technology changes everyday. That update to your iPhone you just ran changed the way data can be collected from the phone.
• No, it’s not going away and if you ignore it, it’s likely at your own peril.

Now that we have those out of the way, let me tell you what I love about ediscoveryand what I can share to help you either learn to love it, or at least tolerate it:

• People say and post way more information as a result of the ease of hiding behind a keyboard. If you learn how to think about the evidence you need and want, it’s out there and you can find it. That has many tremendous upsides.
• The concept of proportionality emphasized in the FRCP amendments in 2015 benefits everyone, not just those with the most data. Yes, corporate clients can use proportionality to limit what they have to provide, but not below what’s relevant. And individual plaintiffs can use proportionality to prevent getting dumped by data. It’s a weapon in your ediscovery arsenal.
• Learning the technology is not as hard as you think it is. You use it all the time, you just need to learn how to think about it from the perspective of what is created, where it’s stored, and whether you need it for a matter. If so, then how do you get it in the most cost-effective manner?
• You have the opportunity to educate judges. Many judges, especially in the state courts, have not been faced with ediscovery issues and cannot get up to speed at a moment’s notice to resolve your issue thoughtfully. So you have the opportunity to provide case law from other courts, thoughtful decisions from their colleagues and respected practitioners, maybe even an expert. When do you ever get that opportunity handed to you?
• Ediscovery works better with a team approach. You cannot do everything, and your litigation support professionals (if you have them) can help you do more if they know what you are looking for, or your plan. This is a chance to stop reviewing the same document five times and do useful stuff with technology. Embrace it.

The best part about ediscovery is that you don’t have to have a technology background or degree. I have an A.B. in English from Washington University in St. Louis and a J.D. from Marquette University Law School. I have no formal technology training, but I use it and talk about it all the time, and I learn new things every day.

Stop saying you can’t and just start doing it.

The truth is that dealing with the intersection of law and technology in the form of discovery is fascinating. Some days it’s overwhelming. New technologies come out every day and we are still governing with laws from the 1980’s. We are charting uncharted waters. In June, I’ll attend my 20th law school reunion at Marquette. That’s relevant because discovery was still largely being done in paper when I started practicing. Yes, there really was such a thing as people typing and sending letters to each other in the mail and it was not that long ago.

I recall a case from 1999 where the crucial document was a typed memo that was printed with handwritten notes in the margins. That document, depending on the interpretation, could have altered the terms of the parties’ contract rendering the claims moot. Has anyone seen that lately? Now the issue is piecing together emails about the document or examining the metadata.

Electronic information has completely changed the way that lawyers have to conduct discovery. Instead of being reactive — having your witnesses hand you their manila files of paper from their desk drawers — it requires lawyers and legal professionals to be proactive and to help the client figure out what information needs to be kept and provided in litigation. You have to start learning about technology, at least enough to know what you are doing and what your clients are doing.

That last part is a crucial point. You don’t have to know everything to engage in electronic discovery effectively. You just need to know what you need to know to handle discovery for your matters. If you are a plaintiff’s lawyer dealing in slip and fall cases, your universe for discovery will be very different than the Biglaw lawyer handing antitrust class actions.

You can do this, but you’ve got to start. No more pushing it down the ladder or ignoring it entirely. We’ll talk about how to do that here.

Your homework for this week is to start noticing the ESI you create, send and receive — whether it’s email, on social media, in an app, on your Fitbit, or your connected devices at home. The information is being created around you all the time. It’s your job to know about it.

There you have it, my first column. I’d like to hear from you about what you want to know about ediscovery — the stuff that haunts you and keeps you from sleeping nights, or just something you have a question about. Drop me a line and let me know.

This article first appeared on Above the Law.