Distinguished panel discusses e-discovery
It’s time for the legal profession to move into the 21st century and for law students to consider a new and rapidly expanding field.
A distinguished group of experts spoke about the importance of electronic discovery at Tuesday’s “E-Discovery Evening,” which was co-sponsored by The Sedona Conference and the Levin College of Law.
Noted e-discovery writer Ralph Losey stressed how different the world has become with modern technology and how lawyers are doing a poor job adapting.
“We’ve been graduating people out of law school who are prepared to practice law in the 19th century,” said Losey, a shareholder at Akerman Senterfitt. “They’re prepared to work with Abe Lincoln, who had a partner and an associate. They went through papers, and they went to a trial courtroom.”
Law students are still generally trained to review a limited number of documents and build a case around what is given to them. But today’s cases can have millions of electronic documents in a variety of formats that have to be reviewed, Losey said.
“You’re not trained to deal with 5 million documents. Cases now – with just 10 witnesses in a corporation – they’re going to have millions of documents,” Losey said. “You cannot look at each document. That’s the real world; it’s not the Abe Lincoln world of just having a few paper documents.” Patrick Oot, Verizon’s director of electronic discovery and senior counsel, gave the example of Verizon buying out MCI to show how complicated e-discovery issues can be.
There were over 2.4 million documents (1.3 terabytes of date) that had to be reviewed in that case, Oot said.
This required 115 attorneys at one firm doing privilege review and 110 attorneys at another firm doing timeline review. It took four months with attorneys working every day for 16 hours a day to finish the review, Oot said. Overall, just the review process cost over $13.5 million for outside counsel alone. Going forward, technological advances will make searching the documents more efficient.
Oot recently read an article that said there were only about 200 lawyers nationwide that can handle e-discovery issues well, but that number needs to grow quickly.
“As our general counsel put it when we first started this [e-discovery] group, he said, ‘This is the only practice within the company that I actually see growing,’” Oot said. “Federal regulatory, litigation, antitrust, intellectual property – he sees those groups shrinking where we’re hiring people all the time.”
With the e-discovery field growing so rapidly, The Sedona Conference has been at the forefront of establishing best practices in the field. One of the principles The Sedona Conference stands for is cooperation with opposing counsel on discovery issues.
“You want to be adversarial, obviously, but at the same time, I don’t think you want to be adversarial on the issues pertaining to what information is available,” said Joseph P. Guglielmo, a plaintiff e-discovery expert for Whaley, Drake & Kallas.
Guglielmo emphasized not asking for something from opposing counsel that you would not be comfortable producing.
One reason the opposing attorneys should cooperate is to satisfy judges, Guglielmo said. He remembers waiting for a pretrial conference about discovery when the judge called a case in which the lawyers argued about discovery issues.
“I won’t get into details with what she said, but she basically told them not to come back in her courtroom again, either one of them – that there would be sanctions if they brought another discovery issue to her attention, because they were things that she believed could’ve been worked out if the phone was picked up,” Guglielmo said.
Ken Withers, a distinguished e-discovery writer with The Sedona Conference, moderated the event. He has been working with e-discovery since 1987, he said.
In this time, two events have made discovery much more important, Withers said.
First, the Federal Rules of Civil Procedure were amended in 1983 and 1993 to allow more discovery, Withers said.
“The number of cases that actually went to trial was decreasing, and it’s now less than three percent of all cases filed,” he said. “Discovery went from being a means to an end – getting to trial – to being the end in and of itself. The stakes of discovery where thereby raised.”
Second, the desktop PC has led to the exponential growth in the amount of data in the world, Withers said.
The Honorable David Baker, a United States Magistrate for the Middle District of Florida, spoke about e-discovery from the judicial perspective.
All speakers agreed that this is the future of discovery and students should try to learn about it. Bill Hamilton, a Holland & Knight e-discovery expert who organized this event, teaches an e-discovery class – one of the first in the country – at the UF Levin College of Law.
“Be smart, look at where the future is, look at the trend,” Losey said. “This is where the opportunity lies. Take these courses on e-discovery; learn about it. Nobody else in the firms you go to are going to know anything about it, trust me… There are a few firms, but there are very few, so this is a time of opportunity. You’ve got to study this stuff.”
Added Oot: “If you want to work in this space, you might as well hitch your wagon to the star, because it’s a really good place to be.”