April 16, 2013

The Future Of E-Discovery-Graduating Soon

by Cary J. Calderone, © 2013

Many have noted that e-discovery education has been lagging in the legal profession.  Still, many forecast that one day, hopefully soon, e-discovery will become second nature to practicing attorneys, in the same manner that wired telephones, paper books, and Dictaphones gave way to smart phones, electronic research, and computers.  E-discovery will be the rule, not the exception for litigation and legal investigations.  And, I am willing to make this prediction for two reasons:  1)  There are a growing number of law schools that are teaching E-Discovery and, 2)  Law students are recognizing e-discovery experience is crucial.     I recently had the opportunity to ask a few questions to some students about their E-Discovery class that had included Laura Zubulake's book Zubulake's e-Discovery as part of the reading material (I reviewed the book here on DredLaw).  The students' answers were very encouraging.

To be crystal clear.  This was not a formal survey.  Because I had expressed my interest in finding out what law students thought of the book as a tool for learning about e-discovery, I was given permission to survey a class taught by noted attorney, Fernando M. Pinguelo, Esq. (bio below).  I submitted a few questions about their e-discovery class experience.  Specifically, I wanted to know if, after taking the course, they thought E-Discovery expertise was important and whether the book in particular, had enlightened them about E-Discovery practice and/or litigation.  I suspected and hoped these students would gain an understanding of the tremendous impact that e-discovery will have on the future of the practice of law.  I was not disappointed.

Here are a few of the questions and selected excerpts from their responses:
How do you and other law students perceive the study of e-Discovery?   Do you feel it should be simply an elective, a recommended course or, a mandatory course for the law school curriculum? 
CatherineK-Generally, e-discovery seems to be perceived by law students as just another form of discoverable material.   However, because electronic discovery requires the help of various IT and technology professionals to recover “lost” data and figure out things like company data retention systems, law schools should articulate the more practical requirements rather than just referring to it as another form of discovery. ... Because electronic discovery is vital to all areas of law, from criminal and personal injury to complex securities litigation and corporate law, it should absolutely be studied in-depth in a required law school course.  
BrandonF-"E-discovery should be a recommended course for every law student looking to get a leg up once he or she enters private practice. So many of my peers enter practice with little to no experience in the down and dirty world of technology discovery issues and costs that any young lawyer or lawyer-to-be is in the cat-bird's seat if he or she is intimate with the prevailing e-discovery issues and law. In short, it makes more senior people want to work with you, which is the name of the game."
ChrisB-"Technology permeates nearly all aspects of the law, and law students understand this. The challenge is finding ways to stay engaged in these issues. Unless your school offers a specific eDiscovery course, you really aren't going to get much exposure. I'm fortunate to serve as Co-Editor-in-Chief of eLessons Learned, an eDiscovery best-practices blog written primarily by law students, so I'm able to get a lot of exposure that way. But that's entirely independent of the law school context. Law schools can do a better job of offering technology-related courses, and I think when they do, law students will take advantage."
Do you feel reading this book has motivated you to get and remain proficient at E-Discovery for your future legal career?

CatherineK-Absolutely. The book really highlighted how persuasive electronic discovery can be for a case. Not only can e-discovery documents have vital information contained within them, they are also usually time stamped and dated, which adds additional credibility to a client’s arguments. To be a practicing attorney and not proficient at e-discovery can easily spiral into the loss of vital information and face possible sanctions. Additionally, because e-discovery can be tremendously expensive, the book really showed how key it is to have good arguments for cost-shifting. Without the ability to figure out exactly what is necessary for litigation and how to appropriately shift costs, a suit could easily become too daunting and expensive to continue.

FrankG- "I already had a background in computer science and the underlying technical aspects of eDiscovery, so taking this course simply motivated me to promote this knowledge as something that sets me apart from many of my peers. Staying ahead of the curve in this regard has become even more important after reading this book and taking the eDiscovery course at my school."

FrankG-“A lot of people, myself included, overlook the fact that electronically stored information ("ESI") factors into nearly every practice of law in one form or another. When the book breaks down the many ways in which ESI can become relevant to the different stages of litigation, it helps open your mind and question where you may be overlooking the intricacies and value of ESI as it applies to your practice.  Personally, I feel that skills classes, specifically an eDiscovery class, should be part of the required coursework for every law student -- our society is too invested in the digital age for attorneys to not have a higher baseline level of knowledge on the topic. It should be common-knowledge at this point, and surprisingly, it isn't.”
ChrisB-"In law school, we always hear practitioners talk about the importance of preparation. Because eDiscovery plays such a central role in litigation, lawyers should develop a comprehensive understanding of the rules and laws governing the discovery of electronically-stored information. I fully intend to continue reading and learning about eDiscovery and related issues."

There is even more reason to cheer.  It is not just law students who are motivated to learn e-discovery.  Here is an excerpt from a paralegal student studying Computer Forensics in a class taught by Bowe Kurowski (bio below):
EvelynB-For a beginner like myself and other classmates, studying eDiscovery was initially daunting but quite fruitful. eDiscovery is a critical academic discourse that must be ascribed to the study and application of law everywhere. eDiscovery encourages archaic justice systems everywhere to use technology to conform with social progress without compromising social justice.
I also asked if the students felt Zubulake's book, in particular, was important to learning about e-discovery:
Chris B “Ms. Zubulake does much more than introduce you to eDiscovery: she immerses you in it. This is the perfect book for law students, especially those intending to litigate for a living.” 
It may take some time before law schools teach E-Discovery effectively. Even once a course is offered, it likely will be different from standard courses and need to be regularly updated to keep up with technology advancements (far more than they are comfortable with). But this is imperative to preparing students for litigation practice. If they do not keep up with the changes, the schools will be doing an incredible disservice to their students. Learning how to authenticate a paper document is not going to be nearly as important as understanding meta-data and electronic search. My favorite side-lesson from this exercise was when one student commented how difficult it had been for Laura to manage emails by hand, without computer tools. Students know email and Social Media is how people now communicate. Why shouldn't their lawyers know how to win a case based on emails and Social Media?

I am happy to report that Robert Brownstone (bio) who teaches at two San Francisco bay area law schools will put Laura's book on the Recommended Reading list for his upcoming E-Discovery class at the University of Puerto Rico School of Law. Law students understand that as lawyers, they will need to know this stuff.  What they don't know is that they may even have to train some senior attorneys and judges about technology and e-discovery. Laura's book provides a great example of the "dark ages" of manually processing "e-discovery."  While third party e-discovery vendors will continue to be important to the process, in my opinion, the best legal minds will know how to develop and strategically manage e-discovery with their client's best interest in mind. Otherwise, if your legal case is really being run by the vendor, then why are you paying all that money for the attorneys?

Bio: Fernando M. Pinguelo, Cyber Lawyer and Adjunct eDiscovery Law Professor, Seton Hall University School of Law
Bio: Bowe Kurowski, Adjunct Professor of eDiscovery at Cal State University Los Angeles, Continuing Education Paralegal Program.

1 comment:

DredLaw.com said...

From the instructor: "I strive to offer my students a complete eDiscovery experience. Until recently, an important missing element was eDiscovery from the litigant's perspective. Ms. Zubulake's book offers my students an unprecedented look at eDiscovery through the eyes of a client who lived through the process." Fernando M. Pinguelo, Esq. | Chair, Cyber Security & Data Protection Group, Norris McLaughlin & Marcus, P.A. on