By Dennis Kennedy, Evan Schaeffer and Tom Mighell
Dennis Kennedy (DK): I read yet another article recently that pointed to the discovery of email in the Microsoft antitrust case as the “wake-up alarm” for lawyers on electronic discovery. Does that mean lawyers have been hitting the snooze alarm on electronic discovery for the last five or six years? Even the most enthusiastic advocates of electronic discovery techniques will tell you that electronic discovery is used in perhaps 1% or 2% of all cases. That raises our question for today: why aren’t more lawyers doing electronic discovery? First of all, do we all basically agree with the 1% to 2% figure?
Evan Schaeffer (ES): Some lawyers might be doing electronic discovery without even realizing it. How? Even though their eyes might glaze over when you ask them about “electronic discovery,” their opponents might be giving them electronic data in printed form in response to their typical discovery requests. That’s the rule in Illinois, for example, where a party served with a request for production is required to produce “all retrievable information in computer storage in printed form.” Does it work like that in Texas, Tom?
Tom Mighell (TM): First, to answer Dennis’ question: according to the ABA’s Legal Technology Resource Center’s 2004-2005 report, 73% have never received a request for electronic discovery, while 11% receive two or less per year, 9% receive 3-11 requests per year, and 6% receive them monthly. So I think it’s bigger than 1-2%. But Dennis, I have problems with the premise of your other question: it may not be that more lawyers aren’t doing electronic discovery, it might instead be that electronic discovery is not a relevant part of many cases (as I’ll discuss further below). As far as Texas goes, Evan, I think you’re right – most attorneys will ask their clients for printed rather than electronic copies of documents, because that’s the way it always has been done.
(DK): Well, the LTRC report gives us some data, but it’s self-reported and not as scientific as anyone would like. Note, too, that the question asked what requests were received. Let me turn the question on its head. It’s worth discussing whether the 1% to 2% figure might actually be an accurate reflection of the cases that should involve electronic discovery. It won’t surprise anyone that I think that 1% or 2% would be a high number for the cases that should NOT involve electronic discovery, but you guys are out there working in the trenches. Do you have some sense of what percentage of cases probably should involve some kind of electronic discovery these days?
(ES): Basic electronic discovery-e.g., a set of written discovery and a deposition to discover the scope of an opposing party’s electronic information-should be done in almost every case in which the opposing party creates and stores relevant information electronically. These days, wouldn’t that describe most litigated cases? It certainly exceeds 1% to 2% by a wide margin.
(TM): I think the key phrase is “relevant information.” In my limited litigation practice I have now (3 cases), although my clients may have information stored on computers, it’s not even remotely relevant to the case. I have a dram shop case (did the bar overserve the driver?), a wrongful death case involving a baby falling from the second floor of a townhouse (was the railing constructed in 1969 in violation of the building code?), and a personal injury case involving an accident in a scrap metal yard (did the crane move too fast?) – no relevant electronic discovery to be had here. Your question assumes that personal injury litigation is similar, discovery-wise, to commercial litigation cases, and many times it’s just not. Personal injury plaintiffs are almost never going to have relevant electronic information, and I’d say at least half the time the defendants won’t have relevant electronic documents either.
(DK): That’s a fair point. Perhaps I’m too simple-minded on all of this, but I don’t understand why you’d ever want to limit yourself to just looking at paper. How would a lawyer make the decision that the other side’s email was categorically not relevant to your case? In today’s personal injury cases, you can imagine that instant messages or email could be relevant or at least something that might be interesting. So much of what we do is electronic these days. I think I’d fire a law firm that told me that they wanted to try a case on the basis of paper discovery alone. However, I am the non-litigator in this group.
(ES): There’s a cost factor to consider, of course. If I’m up against General Motors, I’d be foolish to serve a blanket request asking to see all of its email. If I limit the scope of my request to email that was highly relevant to the issues in the lawsuit, cost would still be a factor. It might be very expensive to locate particular relevant emails among the universe of email at General Motors. Despite these reservations, Dennis, I still agree that it would be foolish to categorically omit consideration of emails in any particular case.
(TM): We’re all in agreement on this one. I think electronic discovery should be a consideration in every case a lawyer has, but there are of course other considerations – cost, universe of documents, and a theme I’ll be trumpeting throughout this article: whether the electronic documents contain information relevant to the litigation.
(DK): So, why aren’t more lawyers doing electronic discovery? I suspect that the answer is, in large part, simply inertia. The legal profession is inherently conservative and slow to change. For better or worse, lawyers are comfortable with the current system of sorting through banker’s boxes of documents and they know what to expect. The billable hours model certainly fits the current paper-based approach. Our natural tendency to resist change explains a lot. It’s hard to change ingrained processes.
(ES): I think you’re onto something there when you talk about the “comfort” of doing things the old way. As someone who’s done plenty of document review, I tend to think it’s much easier to quickly grasp the meaning and significance of a printed document than a document being displayed on a computer screen. There’s something about being able to grasp a document in your hand that adds to your comprehension, especially when that document, after being electronically generated, was meant to be circulated as a printed, paper document. And when you can’t hold the documents-when you must put your faith that a computer search has yielded everything that’s relevant, for example-that can also create anxiety in lawyers who, like me, were trained to review paper documents.
(TM): Part of what we have been talking about in this roundtable series is the complete paradigm shift electronic discovery represents in the way litigation is conducted. It’s more than just the comfort level attorneys feel in holding a paper document; it’s getting attorneys to even think in terms of electronic documents. Until a lawyer gets a case that makes that switch flip on, he or she may not even consider the possibility.
(DK): Fear of change, or fear of the unknown, is related to, but somewhat different from, resistance to change, or inertia. Electronic discovery takes many lawyers well outside their comfort zone. Moving from paper discovery to electronic discovery might take a lawyer from feeling that he or she is an expert to feeling that he or she is a total novice. I don’t think that enough people acknowledge the fact that moving to electronic discovery is scary stuff.
(ES): You’re right about that. Moving to electronic discovery requires a new vocabulary and a new set of procedures that incorporate technical concepts that are completely foreign to many lawyers, even those who consider themselves to be “computer literate.” Unless those foot-dragging lawyers are pushed towards electronic discovery, they will be very reluctant to learn it on their own.
(TM): Are we all agreeing again? I think I have a reasonably good hold on electronic discovery, but sometimes just hearing “MD5 Hash” and “de-duping” makes me glad to be working with a knowledgeable vendor. Lawyers these days are hearing (from me, among others) that they could be liable to their clients if they don’t know how to properly use the technology they have; it’s understandable if they are reluctant to undertake an entirely new level of education in legal technology.
(DK): Let’s face it, the choice of electronic discovery tools and services is overwhelming. It’s not like you run out and buy an electronic discovery program. There are niche and sub-niche software tools. You might often find that, while you thought you needed a program, someone is trying to sell you on a hosted Internet service. These are new and difficult-to-understand concepts. Vendors are selling you hard and they have a tendency to lapse into jargon and stress the importance of features that lawyers don’t really understand. It’s a difficult market to assess and lawyers have good reason to be wary about buying expensive tools and services they don’t understand. There’s also no question that we will see a shake-out and consolidation in the vendor market over the next year.
(ES): Vendors often add an additional layer of confusion and uncertainty. “Do I really need that,” a lawyer might think, “or is someone just trying to sell me something?”
(TM): And how do you know which vendors are reputable? Nowadays, copy services are now advertising that they are also “electronic discovery vendors” because they need to compete – but their services are often far below those offered by the major EDD vendors. I think some companies may take advantage of attorneys who don’t know much about the business.
(DK): You both have asked the questions that should be on every litigator’s mind. However, just because the market for tools and services is confusing doesn’t mean that lawyers should be let off the hook. If you want to represent your clients well, you simply have to get up to speed on this stuff. And that brings me to another impediment to lawyers adopting electronic discovery. They do have to educate themselves and that education is not a simple and quick process. There is a lot to learn. Realistically, it might take hundreds of hours of time to become reasonably knowledgeable – by that I mean knowledgeable enough that opposing counsel and judges really think you know what you are talking about. I think that the best trial lawyers routinely put that much time and more into getting better at their craft and, for them, it will simply be a matter of making electronic discovery the focus of their self-improvement efforts. But the amount of education is a daunting issue, don’t you think?
(ES): It certainly is. And it’s another cost factor. But is the area of electronic discovery really so complicated that it will take “hundreds of hours” to get up to speed? It’s something that those of us who discuss electronic discovery should be careful about, because we don’t want to send the wrong message–that electronic discovery is impossible to learn, for example. What do you think, Tom?
(TM): Gee, when Dennis said “hundreds of hours” I just heard thousands of lawyers running for the door. I think a lawyer who wants to be completely immersed in the subject may well spend that amount of time reading or in classes, but I suspect the average lawyer will require far less time to become familiar with the concepts. A carefully-crafted one (maybe two) day seminar, along with competent supporting materials, should be enough to get most lawyers going on electronic discovery.
(DK): I’ll stick to my guns on what it takes to become knowledgeable, but agree with you on what it takes to become familiar. I’m still surprised at lawyers who don’t seem to want to reach even the level of “familiar.” I look at the common villain. As the minimum billable hours quotas at many firms moved past the 2,000 hour mark, it became harder for lawyers to squeeze in large amounts of continuing education. There’s a vicious cycle there. Economics also pay a role in the resistance of lawyers to electronic discovery. It’s the old billing-by-the-hour conundrum. If one of the promises of electronic discovery is that it makes the discovery process more efficient, then it presumably reduces the number of hours billed to a case, which has a negative economic impact. This results in what I believe is called a “negative incentive” for lawyers to move to electronic discovery. By the way, and we’ll discuss this in a future column, I think that analysis of the economic impact of electronic discovery is too narrow and short-sighted and misses some of the actual benefits of electronic discovery.
(ES): While I used to work on a billable hour basis, I’m usually paid these days on a contingency fee basis. In other words, I invest my own time and money in a case and don’t get paid legal fees unless I’m successful. That’s a model that’s common among plaintiff’s lawyer. Under that model, it makes sense to be as efficient as possible in prosecuting cases. Of course, the initial investment of time and money to get up to speed about electronic discovery will still be a roadblock. But there’s no “billable-hour disincentive” for plaintiffs’ lawyers.
(TM): Speaking for the defense bar, I can say the billable hour block is a big problem; I am constantly frustrated at lawyers who do not take pro bono cases, become involved in local bar associations, or even market their practices because of the almighty billable hour. That’s why electronic discovery education needs to be pitched a little like tort or tax reform education: it’s a necessary evil to get up to speed on new ideas, but once it’s over the benefits in time saved will become more apparent.
(DK): Another factor, which Tom and I have personally discussed throughout the course of this year, is that many lawyers honestly believe that many cases are not suitable for electronic discovery and that electronic discovery is over-kill or inappropriate in those cases. I think that you can reasonably reach this conclusion for some cases, but I’m not convinced that you can reach that conclusion for the overwhelming majority or even all of your cases, as many lawyers seem to be doing today. However, I do believe that you can make the analysis on a case-by-case basis and, after a full discussion, convince your client that trying a case without electronic discovery is appropriate. I think you do want to have that discussion and buy-in from your client, because their assumptions about what you are doing may be very different from what you are doing. Obviously, if I’m your client, you are going to have a hard time convincing me to forego electronic discovery.
(ES): You’d actually be an easy client to deal with. The real problem occurs in those cases in which there is no alternative to electronic discovery but the client is still resistant. As a plaintiff’s lawyer, I’ve never been involved in this sort of conflict since I’m generally paying the costs myself, at least initially. But for civil defense lawyers, I’d think that sort of attorney-client conflict would be quite a problem. What would you do, Tom, if electronic discovery was necessary to defend a case but a client refused for cost reasons?
(TM): If a client refused to pay for the costs of electronic discovery (and no avenues of appeal were available up the decision-making chain), just about the only thing I could do would be to confirm the client’s refusal in writing. CYA, I believe it’s called.
(DK): But, Tom, I’m not sure that enough lawyers are even getting to the CYA level. More important, I’m just not sure that clients are getting what they bargained for when they hire lawyers today. I must have been asked a hundred times this year why lawyers aren’t moving into electronic discovery. Here’s my most blunt answer: because their clients don’t penalize or punish them for not doing so. You can do all the seminars, white papers and studies that you want, but we won’t see anything more than incremental change until clients start firing law firms that don’t do electronic discovery and hiring law firms and hiring law firms that do. I don’t think I can be more blunt about it.
(ES): Perhaps it will take a general awareness among litigants that electronic discovery is the way to win-or lose-cases. I’m thinking along the lines of more horror stories like the ones you’ve been highlighting in these columns. I hope I’m never the central figure in one of those!
(TM): Dennis, I have to ask this question: who is asking you why lawyers aren’t moving into electronic discovery? If it’s lawyers, then they should be answering the question themselves. If it’s non-lawyers (which = clients), then they should be asking their own lawyers this question. I’m just not convinced that clients will fire their attorneys for not doing electronic discovery as often as they will for not providing a good result at a (usually) reasonable price. That won’t happen until there’s more tangible evidence that, as Evan says, EDD wins or loses cases.
(DK): Vendors, clients, journalists, a judge or two. As a last thought, I wanted to bring up something that has puzzled me about lawyers’ limited use of electronic discovery. No, it’s not the malpractice issue, which we can save for another day. Regular readers know that I’m the radical of the group and I like to ask simple, basic questions. I thought litigators wanted to win cases – and I consider favorable settlements as big wins. If electronic discovery can give you an edge, and in some cases a substantial one, why aren’t lawyers using it? That’s the question I think clients will be increasingly starting to ask and then demanding answers.
(ES): Yes, it can give you an edge, but some lawyers might fear it comes at too great a risk. “If I’m overzealous about electronic discovery,” a lawyer might think, “my opponent will turn the tables on me and require the same things of me in triplicate.” Perhaps it’s a mistaken case of mutually assured destruction.
(TM): Agreed, but look at all the reasons a lawyer might not use electronic discovery: 1) it’s not relevant to the case, 2) it can be cost-prohibitive, 3) lawyers are more comfortable working with paper, 4) unfamiliarity with EDD, 5) techno-phobia, 6) the learning curve, and 7) client refusal to pay. For some lawyers, it may be a combination of some or all of these reasons. The challenge – one that I hope we will continue to address in these columns – is to make all of these reasons meaningless, by educating lawyers about electronic discovery.
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Dennis Kennedy (dmk@denniskennedy.com) is a well-known legal technology expert and technology lawyer based in St. Louis, Missouri. An award-winning author, he has written extensively on electronic discovery and other legal technology topics and also speaks frequently on these matters. His website (www.denniskennedy.com) and blog are highly-regarded resources.
Evan Schaeffer (eschaeffer@riverbendlaw.com) is a class action and mass torts lawyer based in the St. Louis metropolitan area. His firm is Schaeffer & Lamere, P.C. Schaeffer’s weblogs are The Illinois Trial Practice Weblog and Evan Schaeffer’s Legal Underground.
Tom Mighell (tmighell@swbell.net) is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson, P.C. in Dallas. He is the author of the Internet Legal Research Weekly, and the Internet research weblog Inter Alia, an Internet legal research weblog.
Filed under From the Experts.