Discovery Resources

In Parts I and II of this series, we surveyed lawyers and non-attorney litigation support professionals on their views of certification in electronic discovery. For this third and final part of the series, we spoke directly to the credentialing organizations who are currently offering the certification.

Unnecessary angst

Debate continues as many are still on the fence about whether certification in e-discovery is appropriate. Some, however, are joining “camps” and are now “for” it or “against” it. Those who are for certification generally support it in the name of encouraging education. Those who are against certification are more skeptical about its value, but are they criticizing certification itself or perhaps mistrustful of the organizations that are doing the certifying? More fundamentally, why is e-discovery certification such a controversial topic? Seems like unnecessary angst. Regardless of where you stand on the issue and who you think ought or ought not to be providing credentials, e-discovery certification has arrived and is here to stay.

Agreement on the facts

All seem to agree on at least a few things. Electronic discovery is complex, and education is essential for everyone practicing in this area. By the same token, experience is critical and can’t be replaced by education. Certification is new and lacks a recognized, well-defined, generally accepted industry standard – it’s not for everyone.

The most well-known and respected organizations in the e-discovery educational thought leadership arena include the EDRM, The Sedona Conference and Georgetown Law. All three of these organizations offer education in e-discovery, but none offers certification in e-discovery.

Certification programs are commonly offered by vendors to certify competency in the use of specific tools, products and proprietary software. Also noteworthy is the certificate earned for completing the online e-Discovery Team Training course offered by Ralph Losey, but successful participants in that program earn a certificate, not a certification. These are not the “certifications” in controversy. Rather, it is the new e-discovery certification programs offered by The Organization of Legal Professionals (OLP) and the Association of Certified E-Discovery Specialists (ACEDS) that are generating all the debate.

Who offers certification?

EDRM, Sedona, Georgetown, the ABA – none of these organizations offer certification, nor are state bars associations offering it. As we noted earlier, only two organizations have so far undertaken the heavy resource investment necessary to bring this opportunity to the table: ACEDS and OLP. ALSP is in the process of creating a certification program; however, it is not yet public and the scope of its program will be broader than the specialized area of e-discovery.

For profit or not for profit

OLP is a non-profit, while ACEDS is a for-profit organization. Does that matter? Before you decide, consider the tremendous benefits provided to the industry by both kinds of organizations. For example, Socha Consulting is a for-profit organization, yet they have done amazing work to better the field by introducing the EDRM, which provides a widely accepted model and valuable guidance. The Sedona Conference, on the other hand, is a non-profit, and few would deny they have paved the way for thought leadership in the field. ILTA is also a non-profit, providing great service, education and networking to the litigation support and legal communities. ALM (which puts on LegalTech New York) is a money-making business, but most would agree they also provide great service, education and networking to the litigation support and legal communities.

ACEDS and CEDS certification

Interestingly, both OLP and ACEDS started their certification-building efforts at the same time, in 2009, and both began at the most significant industry event of the year: LegalTech New York. In retrospect, it’s clear that an opportunity to provide more formal credentialing in e-discovery was beginning to be recognized at that time.

Gregory Calpakis, ACEDS executive director, shared the story of how the organization came to be. Two years ago, while attending LegalTech New York, Charles Intriago – soon to become co-founder of ACEDS – walked the show floor and spoke with industry practitioners. He heard plenty of chatter and predictions about certification in e-discovery, but nobody was doing it. He decided to undertake the mission to bring certification to fruition. Though he was a newcomer to the e-discovery arena, Intriago was no stranger in the legal community. He was a former federal prosecutor, had served as a partner at McDermott Will & Emory, and ran his own firm. His background also includes experience in developing training seminars, conferences and professional certification credentialing.

Intriago is not an e-discovery guru, nor does he purport to be. So how can he create a certification program? Calpakis addressed Intriago’s lack of expertise in e-discovery candidly. No, Intriago is not an expert. But he was savvy enough to recognize that subject matter experts were needed and then secured representation from each discipline to conduct job task analysis in the process of e-discovery. Through this research, 150 objectives and 78 tasks were identified. Then, an outside firm that specializes in psychometric test validation established the specific criteria for certification.

Applying the same principles used in other professional certification programs to e-discovery, Intriago achieved impressive results. His first-year ACEDS conference drew 300 attendees and esteemed panelists and, even though some of the academic and e-discovery celebrities were missing, the conference was a hit. The CLE units were approved for credit by multiple jurisdictions, including California. And, of course, the conference marked the launch of the first-to-market e-discovery certification – the Certified E-Discovery Specialist (CEDS) credential – for which ACEDS offers a class and test. The target audience is broad and includes not only those new to or re-entering the profession, but also those who are already active in the field who seek to enhance their skills and deepen their knowledge to handle client ESI.

In the early days, no one had heard of the ACEDS; now it seems everyone has heard of them, and many of us hear about them often. They engage in persistent and broad marketing outreach, as do many of the organizations (for-profit or not) in the e-discovery space. For better or worse, ACEDS has a bit more of a commercial “look and feel” than its academic and non-profit counterparts, and for some people this creates the wrong impression. But be assured that under the gloss and glitter, there is a solid foundation.

OLP and CeDP certification

Nearly two years ago, OLP embarked on its mission to bring e-discovery certification to the field. OLP used outside experts to research, create and vet their program, and applied physchometric development techniques to validate the exam.

Chere Estrin, who chairs the board of directors at OLP, is the driving force behind these efforts. She has provided professional education to legal professionals for years and has long recognized the need for standardization to create efficiency. She perceived a major disconnect between law and technology in e-discovery, and decided to create an education program to bridge that gap. Estrin understood that a valuable benefit of a certification program would be to provide participants with a shared language to communicate with employers and colleagues. We know law schools don’t really teach technology and IT schools don’t really teach law, so it is helpful to have an industry education program the does both.

Doug Mitchell, a litigation partner at Boies, Schiller & Flexner LLP, serves as the chairman of OLP. He anticipates that the next six to 18 months may bring out more skeptics of the certification process, and speculates that the apprehension stems from the “newness factor,” but he’s convinced that in five years certification programs will become widespread and regarded as highly desirable. Mitchell believes that certification in e-discovery will both help identify core competencies and validate the competence of individual practitioners. As a practicing attorney, he feels if members of his staff and employees of vendors are competent in e-discovery processes, then he can focus on legal issues.

An e-discovery certification demonstrates a base level of knowledge and skill. This should give law firms and corporate legal departments increased confidence that their litigation teams, service providers and other stakeholders can at the very least communicate effectively about ESI matters. “Speaking the language” of electronic discovery and navigating the basics with increased efficiency will ultimately help save clients money.

The OLP’s certification program offers a Certified eDiscovery Professional (CeDP) credential. Being second out would typically make one an underdog, especially in this two-player universe, but OLP has gained considerable industry support already. Their audience includes attorneys, paralegals, litigation support staff and vendors. The CeDP program is also appropriate for technology leaders.

Be a good steward

Education and exams are expensive. The cost for preparatory courses ranges, roughly, from $300 to $900, and the fee to sit for the certification exams ranges from around $250 to $1,000. Both ACEDS and OLP offer bundled packages for the prep classes combined with the exam registration. There are membership discounts, as well as special rates for government and academic institutions. Some limited-time offers and group pricing are also available. Prices are approximate and subject to change; for additional information contact ACEDS or OLP directly.

Industry leaders consistently admonish all to be cautious when spending your hard-earned money on e-discovery programs. Assess your career and personal goals. That is good advice and applies across the board, not just to OLP and ACEDS. Be wise and evaluate what you want to get out of the investment. To name just a few other educational programs: Georgetown’s one-week boot camp, “The eDiscovery Training Academy,” is $3,000, and its two-day “Annual Advanced eDiscovery Institute is $1,300. The Annual Sedona Conference Institute Program on “Staying Ahead of the eDiscovery Curve” is $1,200.

Keep in mind that “new” and “for profit” are not always suspect. Last month, the Carmel Valley eDiscovery Retreat’s premier event attracted household names as speakers and received glowing accolades. Next month, The Electronic Discovery Institute debuts its Legal Technology Leadership Summit in Amelia Island, Florida with a star-studded cast including honored members of the judiciary.

Regardless of which avenue you pursue – education alone or education plus certification – remember that Model Rule 1.1 expects you to be competent, so be competent. If you don’t specialize in e-discovery, be sure someone at each of your office locations does.

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