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With technology changing so fast, it’s difficult for lawyers to maintain the level of competency required for their field especially on matters of Electronic Discovery (nicknamed “eDiscovery” by those who know it well). Even though people have been emailing and creating documents digitally for over 20 years now, there are still some lawyers that have not had to face eDiscovery – but they will eventually because it is starting to figure into all kinds of cases, large and small, corporate or personal, you name it.
If faced with a case that requires evidence in electronic form, lawyers must immediately become competent in eDiscovery or associate themselves with someone who is competent in that field. Lack of competency is a serious issue and may be grounds the M word – yes, I mean malpractice!
Don’t let this happen to you – listen to Browning! Browning Marean is a senior counsel in DLA Piper's San Diego office. He is a member of the Litigation group and is co-chair of the Electronic Discovery Readiness and Response Group. Browning says believe it or not there was a time when technology was well—simpler; there was a time in the legal field when discovery rules were analog. The world has since gone digital and technology everywhere is moving at the speed of light. For the legal world this poses a constant obstacle because as the technology changes so do the laws and procedures that govern them.
According to Browning, eDiscovery is a major challenge for lawyers now as the age-old question as always been for them to ask, “Where’s the evidence.” For most of the seasoned legal professionals evidence used to be something physical – paper files, a murder weapon, tapes from an answering machine, and now most evidence is digital. Additionally, Marean says that much of the data that is being created on a computer is not being printed, which makes it increasingly difficult to answer that question of, “where’s the evidence” because you can’t see it unless you know where to look for it in cyberspace.
eDiscovery deals with the exchange of information in electronic format. Today’s lawyers, legal IT and litigation support professionals need to know how to harvest the data, how to get all of it, and how to avoid ruining it so it is inadmissible. Unfortunately, this is no easy task because, according to Browning, data is doubling every two years. This creates a situation where lawyers are required to go through massive data lakes and narrow down to documents they need for their case or matter. Marean says that on some cases lawyers start with one million documents and have to work to narrow that massive amount of data down to the hundred or so needed for the case.
If that caught your attention, and you’re wondering whether you really know everything you need know to about eDiscovery, Marean gave us a few words of wisdom. He says, “You don’t know what you don’t know,” and there isn’t enough time for you to delay coming up to speed with eDiscovery. It could be as soon as next week when a case is handed to you that requires lots of eDiscovery or a client may call and ask you a question about it, and that is not enough time for you to play catch-up. It is important for lawyers and IT staff to learn about eDiscovery, and the time to learn is now. Don’t let it trip you up – be proactive and learn about it now – before the M word comes knocking on your door.
Now that you have learned about the importance of eDiscovery, I am sure you are chomping at the bit and wondering where you can go to learn more about it. Marean gave us list of resources that he recommends… or you can contact your local bar for seminars and webinars on eDiscovery
In closing, Browning, who is full of colorful expressions as his friends all know, advises lawyers, “Don’t ignore eDiscovery - it ain’t going away!” Couldn’t have said it better myself!
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