An interview with Anne Kershaw, attorney, senior consultant and founder of A.Kershaw, P.C.; co-founder of the nonprofit eDiscovery Institute
Does the challenge of e-discovery arise from a case of technology practices going past the old boundaries of the legal system?
It is a fast-moving field. The so-called problem of discovery of electronic data in litigation is really a problem of perceptions. Yes, there is much more volume now because it’s easy to create mountains of data electronically. But added to that is the problem of lawyers not learning how the technology works and defaulting to old-fashioned discovery strategies that aggravate rather than resolve the problem.
In the old days, we had to take all the boxes of paper in the warehouse because we didn’t have any way to find out what might be relevant without going through every file in every box. Unless there was a person there to tell you, “Oh, here’s my file about the Widget case,” the lawyers would read everything and try to discern what was relevant, what was privileged and what was confidential. Now that most information is digital, we have the technical tools and skills to find what we need electronically. It’s still better when there are people available to tell us where the relevant information is, but if we don’t, we can use technology to search, filter and sort the documents in our electronic boxes, if you will.
It sounds like technology isn’t the barrier.
No, technology is our friend here, but the legal profession is slow to change and lawyers are risk-averse. Lawyers are trained to follow precedent, stare decisis. We’re educated to repeat and depend on how we did things in the past. Some of us still want to make mass grabs of data and painfully chip away at it with teaspoons, which means lawyers are sitting at desks reading every little piece of paper to find the relevant information. But if we wake up and consider that technology can help by culling and sorting and sifting and searching, we can be very efficient at this. Through the eDiscovery Institute, we’re educating lawyers and judges, and the message is that lawyers cannot make decisions as to what is a reasonable process or discovery decision if they don’t understand the IT, so they need to learn it. There’s not a lawyer in the land who gets a malpractice case or a construction case and doesn’t task him or herself to learn everything they need to know about malpractice or construction in order to defend or prosecute that case. Now they need to learn about electronic data to manage discovery in litigation correctly. I think we’re getting there, and that’s the new emphasis.
But is the mass of corporate communication a good fit for the legal system?
No. The mass of corporate communication, if unmanaged, makes it extraordinarily difficult for us to locate information that is responsive to a litigation or regulatory inquiry. The single most important thing a corporation can do to reduce costs and risks associated with electronic discovery is to clean up and dispose of data that it no longer needs to retain for business or because of pending litigation or compliance. In most corporations, there are terabytes of old electronic files created years ago that no one knows about or cares about anymore, yet this forgotten data is backed up and maintained at significant cost. This old forgotten data also adds huge expense in the event of litigation. As part of our consulting practice, we assist corporations with this clean-up process and we provide opinion memoranda and recommendations as to what data can and should be disposed of. If the client is ever second-guessed by a judge or adversary, we defend our disposition recommendations.
So what’s the status quo and can we actually adjudicate things today?
What’s happening today is that an awful lot of money and energy is being wasted on discovery. Most people touching electronic discovery benefit financially if it is hard, expensive and voluminous. The vendors charge by the gigabyte and the lawyers charge by the hour. The lawyer thinks the sky is falling and she has to collect email from everyone who ever worked in departments that touched the matter at hand, which totals 300 people. But why 300 people? Well, that’s when I say, hold on, maybe there are 20 people who headed up this issue or project and another 280 who worked around them, but why don’t we start with the first 20? There’s a lot of waste and lost opportunity to get control over this because people mostly aren’t doing what they need to do to cut it down.
Do judges help set discovery boundaries?
Federal courts and most state courts have rules and procedures for discovery, but the court usually doesn’t get involved unless there’s a problem. Federal courts require a Rule 16 conference, and a “meet and confer” before that, where parties are supposed to get together and agree on a discovery plan they report to the court. The thing about electronic discovery is that if you miss the opportunity to do it efficiently and correctly at the beginning, you can’t recover from that. If you want to contain costs and have a sensible scope, you need a meaningful discussion where you tell your adversary, “Here’s what I have and what I propose to do and why.” That’s not consistent with the old style of litigating, where, if my adversary doesn’t ask for something I’m not going to volunteer information and tell her. When there is a problem, the court can second-guess everything with the benefit of hindsight, and like I said, some things you can’t recover from.
Is this again about lawyers not learning about technology?
We need the lawyers to be more involved in understanding their clients’ IT infrastructure and how it works. In my consulting practice, when we help a company get ready for discovery, we usually find you need to get the IT person, the records management person and the legal person together. You develop checklists, for example, so that when the case comes in, you know what data sources need to be considered, you have a list of things you need to do, who needs to get the hold notice, and you document all that. Before the case comes in, you find the data sources that can be cleaned up. It doesn’t need to be a big deal, you just sit down and figure it out.
Can’t a lot of this work be headed off in companies with policy and housekeeping?
Most definitely, but companies can get caught up with vendors telling them they have to buy a data map or an early case assessment tool, all buzzwords. Actually, not having a policy is the second single worst thing an organization can do. Having a policy and not following it is probably the worst thing you can do. There’s no rule in court that says you can’t dispose of data that you no longer need to keep for business or legal compliance reasons. When you get sued, that rule changes. At that moment you have an obligation to preserve anything that’s potentially relevant to the lawsuit. If you’re diligent about maintaining your data and cleaning up your legacy data, theoretically when you get sued you’re going to have on hand that which matters and is relevant, and what you were no longer required to keep under your policy is gone. Part of my job is telling people what’s okay to throw out, because nobody in the organization is willing to say that. But we have to if we are going to keep this under control.
Do judges and lawyers have enough case experience to know what is reasonable and expected for e-discovery?
Ugh ... That is such a problem, and goes again to the point about lawyers needing to educate themselves. I just wrote an article for an ABA [American Bar Association] conference that makes the point that people tasked with making judgments about what is appropriate for electronic discovery are not qualified to make those judgments if they don’t understand the technology. For legal concepts like negligence and recklessness, for example, our human experience tells us what’s negligent or what’s willful or not. We’ve always monitored these things. When we come to the electronic world and ask people to make judgments about what’s reasonable, you see judges ordering things that are off the charts and lawyers making agreements that aren’t sustainable. We lawyers need to learn that it’s okay to admit what we don’t know. I Google technical terms several times a day to learn what they mean. That’s what all lawyers need to start doing if they want to truly get control over electronic discovery.