RethinkingtheFutureOfLaw?

The profession of law is being utterly changed by recent concerns regarding the identification, preservation and collection of electronically stored information within the context of litigation. This reality is supported by the fact that, ever since the recent amendments to the Federal Rules of Civil Procedure, the number of court issued decisions regarding E-discovery disputes has been steadily on the rise.

"Utterly" is the only word that lifts the first sentence above the level of truism, and it's a difficult word to substantiate. Nothing that follows justifies the proposition that the effect of the Net on law practice (or even litigation practice, which is of course just a tiny fraction of what lawyers do) can be reduced to procedural changes "regarding the identification, preservation and collection of electronically stored information within the context of litigation." Is the Net transforming the legal profession "utterly"? Only if the Net is transforming society "utterly," and to the same extent. "E-discovery" would be a splinter in relation to the tree, which is a small part of the forest, I should think. Nothing said below addresses, let alone resolves, that doubt.

Whether a fad or a permanent reality, these concerns are being fueled in great part by lawyers’ incompetence when it comes to computers and their lack of cooperation in the discovery process. By addressing these two elements we might help to address this area of law in a simpler context.

Everywhere we read, the immense amount of literature surrounding this area portrays a legal world swamped in exponentially increasing/unmanageable volumes of electronic data.

Well, if by litigation we mean wars among collective entities, "big data" is a part of litigation because it is a part of the life of collective entities, and soon even of individuals. But if businesses can manage peta-, exa-, and even ettabytes in other contexts, they can do it in litigation as well. That their lawyers may not know how is unimportant: the lawyers who fight their stupid wars for them rarely understand much else about what they do, either.

Discovery disputes are addressing controversies as variable as “when does the duty to preserve electronic data arise”, “the scope and format of production”, and “when does spoliation take place”. And court opinions both in federal and state court are being frequently issued, to the point that by last year every federal circuit had issued an opinion on E-discovery.

But why are these questions different because the data was born, lived and died "digital"? And in order to explain why, as a Marxisé thinker would put it, the quantitative change to big data becomes qualitative, and somehow demands significantly different rules, requires a thought process not outlined here.

The Federal Rules of Civil Procedure are immensely stupid, and not less stupid about discovery than they are about other matters, but they are not this stupid nonetheless. In general, they are affected by the flavor of legal realism in much the same way that the UCC and other mid-20th century American legal products are: they favor legal processes that defer to business processes. So material enters the litigation context, generally, "as it is kept in the ordinary course of business." Why that should be different when the material is in an exabyte-scale data warehouse than when it is in a four-drawer filing cabinet remains quite unclear in this draft.

States are also adopting their own rules on the subject and court systems, like New York, held efforts to assess the impact that E-discovery has had on the legal practice with the intent to improve the quality of said discovery practices within the state. The federal system has also designed a guide to assists judges in managing E-discovery issues. Even the Seventh Circuit is working on a project dubbed the “Electronic Discovery Pilot Program” with the purpose of improving fairness in the litigation procedure by reducing the costs of dealing with E-discovery.

Moreover, according to a survey published by the DukeLawJournal, sanctions and awards for spoliation of electronic data have been increasing, especially in recent years. Of particular interest is the fact that, in 2009 alone, more sanctions were awarded than in the period between 1980-2010; the monetary awards ranging from hundreds to millions of dollars.

At the same time, lawyers are being bombarded with advertising of proprietary software from E-discovery vendors purporting to have the holy grail of discovery; the only solution for finding the “smoking gun” of their claims. And all of these vendors promise that their technologies and services will provide the best results for collecting and processing electronic data in exchange for reasonable and justified fees.

Which snake-oil salesmen have been doing to lawyers since at least the formation of the West Publishing Company, right? So the difference now is that the sort of litigation you are talking about, which is engaged in by a tiny number of organizations controlling the vast preponderance of the world's wealth, and is in fact a tiny sliver of the world's litigation, which is a tiny sliver of the world's efforts to do justice, is more expensive than ever before, and more expensive snake oil is peddled in connection with it than ever before.

It is always possible that this is all nonsense and that the concerns are misleading; that there are inexpensive solutions out there for lawyers to deal with electronic data in discovery.

Indeed. But acknowledging the possibility doesn't do much good unless it is evaluated somehow, and its significance determined.

It might even be that this is all part of a well-concocted commercial scheme or simply a lot of background noise that has come about as a result of the leading voices in the subject matter not really knowing or understanding what they are talking about.

Ditto.

The truth is that lawyers’ recent interest in requesting the production of electronic data vis-à-vis the technological incompetence that permeates all of society is playing a mayor role in bringing about these results. Lawyers’ traditional adversarial approach to an overly broad and liberal discovery process is also playing an important part. And unless we tackle these aspects, the discovery process in the litigation context will become unmanageable.

Both lawyers and judges are usually not computer engineers, nor tend to have knowledge on computer forensics, the storage/traffic of data or other technology related matters. Therefore, they lack the know-how, let alone teshe experience, to properly handle the issues regarding the discovery, review and production of electronic data. In addition, corporate parties – which hold/handle larger volumes of electronic data – are generally not exempted from this knowledge gap given that their IT staff does not get involved in their litigation disputes, but rather works to ensure the proper functioning of their technology infrastructure.

I don't know whether that's true or not, and you've provided no evidence. In my experience, many technologically sophisticated companies have technologically sophisticated litigation support operations, many of which are external profit-centers providing services externally as well as internal resources drawn upon in the course of high levels of predictable business litigation.

Accordingly, none of the above-related effects should come as a surprise to us. Ignorance in the subject helps drive the aforementioned disputes, the debates of InformationInflation, and the need for rules and court intervention. They are a direct result of our computer illiteracy. And if some players with the required knowledge to handle these matters use it to their advantage to fill their pockets, it goes unnoticed. In the end, their services are perceived as a response to a market need.

Something less indefinite would be helpful here. There's not a single actuality discussed anywhere in this essay, still.

Moreover said ignorance, in conjunction with lawyers’ traditional lack of disposition to cooperate throughout the discovery process, fosters disagreements and motion practice, and further delays the prompt resolution of a claim. It is only logical that if the legal representatives do not understand the technical aspects required to handle electronic data, desperate efforts will be held in trying to resolve a widely perceived, but misunderstood problem.

Most obviously, enrolling back in school is not a widely available option. But if we truly want to contain the existing problems involving E-discovery, the approach should be to encourage the education and training of the technical aspects of electronic data and the use of efficient/inexpensive technologies.

But this assumes, dubiously, that this is primarily a lawyers' problem. Suppose instead, backing away from the parochial for a moment, that there are tens of thousands of similarly-scaled social adjustments to big data in other fields of social activity, which are themselves part of the larger adjustment to the adoption of an external digital nervous system for humanity, which is the largest change in human life since the adoption of writing. Consider, for an instant, what it would mean now (a few thousand days into that process) to forecast the changes in medicine resulting from big data. Surely it's apparent that even when we are thousands of days more along the way we will still be only at the beginning. To be treating this as though the issue were a missing course in the curriculum is probably fatuous at this stage, right?

This technical education should be balanced with an effort to push lawyers to cooperate further through dialogue and transparency. The fact that opposing parties cooperate with each other throughout the discovery process does not necessarily entail going against their clients’ interests. Thus, by fostering cooperation, lawyers can safeguard their clients from existing E-discovery disputes while still serving the interests of justice.

The desire to discover electronic data is a current reality in our legal system. But, many of the effects resulting from E-discovery have been fueled by our technological incompetence. If any of the issues involved are to be resolved, technological education is an indispensible element. This should be done along efforts to force lawyers towards further cooperation. Although it might be wishful thinking, fortunately this is being helped by clients’ adverse reactions to excessive fees and recent demands for AlternativeFeeArrangements. I can’t foresee a faster way to address this area in a simpler context.