Why are lawyers incompetent when it comes to e-Discovery: Hubris. Time. Perceived easier options.
Stephanie Wilkins recently wrote an excellent article entitled, “Is Attorney E-Discovery Incompetence the Elephant in the Room?” In it, Wilkins notes a recent Report from eDiscovery Today, a website paper from EDRM, commentary by several exerts, and several recent examples that all evidence the glaring ignorance of so many lawyers about e-discovery issues:
- The e-Discovery paper cites a Survey of 400 e-discovery leaders. 23.4% of them say lack of eDiscovery competence was the number one challenge they face, significantly ahead of all other issues.
- The EDRM paper notes the importance of lawyers’ to use AI with e-discovery. But numerous commentators lament its lack of use by practitioners.
- Reports of weekly e-discovery mistakes made by lawyers stemming from the lack of understanding of how to handle basic ESI.
- The explosion of data and data sources compound the potential diasters from e-discovery mistakes
Wilkins concludes that this lack of competence is the elephant in the room that no one wants to talk about. The big question, particularly given the available tools and data explosion, is why. Why are so many practitioners so far behind?
Wilkins offers several theories, from shame to apathy to a lack of education in law school about the subject. All of these certainly contribute. But, based on my experience in a mid-size firm, there are additional, more impactful reasons that are harder to overcome.
It’s just a production issue, not a legal one for lawyers.
The first is the perceived time required to learn and better understand e-discovery. Nonbillable time. So many lawyers hear and look at e-discovery and the issues it brings, and their eyes just glaze over. Too much to learn. Too much to understand. Not enough time to learn it all, especially if that time is nonbillable as basic learning would be. So they stick their heads in the sand, especially in cases where the amount in issue is not enough to justify tackling the problems. It’s just a production issue, not a legal one for lawyers.
Add to this the fact that all too often, the lawyers on the other side of a case don’t know much more than their adversaries. So they aren’t inclined to push the issue either. Both sides view it as just not worth the time or trouble.
Or many firms have managed to find (or designate) lawyers or legal professionals in their firms as the e-discovery “experts” to handle the problem. Got lots of ESI that you have to deal with? Call Joe. He’s the firm expert. And to show you how seriously many firms view e-discovery issues, Joe will often be a long-time employee or nonequity partner. He or she is not considered valuable enough to join the equity ranks. Or we refer the issues to a young associate. They know all about all this digital stuff, right?
Another option used by lawyers is to wash their hands of e-discovery entirely and hire an outside vendor to deal with the issue.
But there are huge problems relying on others to deal with our e-discovery issues. Far too often, Neither Joe nor the vendor really knows the case like the lawyers handling it. They don’t know the strategy. They don’t know the client (Joe and vendors often aren’t invited to client meetings). They don’t know what the vision and desired outcome of the case is.
So they aren’t in the position to make good strategy calls that so many e-discovery issues involve. Their roles are considered to be that of technicians instead of real lawyers.
And because they aren’t as invested as the lawyers in the outcome, they may not go that extra mile or offer the best advice. They aren’t as invested in successful outcomes as the lead lawyer and the firm is.
The supervisory ethical obligations of the lead lawyer are often lost in the process and ignored.
Finally, as discussed below, the supervisory ethical obligations of the lead lawyer are often lost in the process and ignored.
The bottom line is that too many lawyers think that e-discovery is not a legal issue at all. It’s just a production issue. Before ESI became predominant, we often shipped the paper document ns out to a vendor for production or left them to paralegals. So let’s do the same with ESI. It’s not something I, as an important big shot lawyer, need to lower myself to deal with. So we don’t demand competency in ourselves or our litigation associates. Neither we nor our law schools (by and large) train or teach our lawyers about the subject. As with too many things in legal, lawyer hubris stands in our way.
And, as mentioned, our lack of competency has some serious ethical overtones that are often ignored as well. A good description of the connection between our competency and supervisory duties as lawyers, for example, can be found in a Californian ethics opinion.
California Formal Opinion 2015-193 talks about three noteworthy and ethical points:
1. It recognizes that almost every case involves e-Discovery or could. That required some knowledge of e-discovery.
2. It confirms that the lack of technical knowledge concerning e-discovery may run afoul of the competency obligations. This is true even if the attorney is highly experienced warns California.
3. It recognizes that if the lawyer in charge may lack technical knowledge of e-discovery, they can meet their duties by associating with another lawyer or a vendor. But the lawyer still has supervisory responsibilities. The way the California Bar Association defines this supervisory duty is telling:
“[A]n attorney [can] meet the duty of competence through association with another lawyer or consultation with an expert… This consultation or association, however, does not absolve an attorney’s obligation to supervise the work of the expert…, which is a non-delegable duty belonging to the attorney who is counsel in the litigation, and who remains the one primarily answerable to the court. An attorney must maintain overall responsibility for the work of the expert they choose…The attorney must do so by remaining regularly engaged in the expert’s work, by educating everyone involved in the e-discovery workup about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with the e-discovery tasks at hand. The attorney should issue appropriate instructions and guidance and, ultimately, conduct appropriate tests until satisfied that the attorney is meeting his ethical obligations prior to releasing ESI.”
The latter is a high standard for the supervising lawyer to meet. I seriously doubt whether most lawyers using other lawyers or vendors van today meet this.
E-discovery is a core competency
Each of the California Bar Association’s points would suggest that lawyers have ethical responsibilities requiring e-discovery competency. This competency seems to be sorely lacking across the board.
So for substantive and ethical reasons, lawyers need competency that the typical options they employ don’t provide. And as data gets more numerous and the issues more complex, it will only get harder. Those lawyers hiding behind hubris, an unwillingness to invest time to learn, and taking the easy way out by using others they think are somehow lesser simply won’t fly.
E-discovery is a core competency. My advice: dive into e-discovery with both feet now and learn what you need to know. Before your adversary or the Judge beats you over the head with what you don’t know.