Harsh Reality From the Socha-Gelbmann Survey

posted in: LawFirms, LitigationSupport, Tech 5 |
Reading Time: 3 minutes

I saw their article today about the results of their annual survey of the Electronic Discovery market, and found a couple of striking statements:

While two years ago every copy shop in the land became an EDD provider, today law firms nationwide purport to harbor deep EDD expertise. Much of this is a convenient fiction, useful for marketing but of questionable veracity when it comes to client service; many participants estimated that no more than 100 to 200 hundred lawyers in the entire country really “get” EDD.

This is interesting, because truly, there have to be 1000 to 2000 lawyers marketing themselves as EDD “experts”, but maybe only 10% of them are correct? Are the other 90% lying? Actually, I don’t think they’re lying, I think it’s a case of them not knowing what they don’t know. They may get the legal side of the equation, that you have to collect, review, produce in a usuable form, etc. but that does not an EDD expert make. I’d be willing to bet that many of the survey respondents have encountered one too many attorney who claimed to be the EDD “expert” and then didn’t understand what a PST is, or who understood their need to hold and collect data, and then asked it to be emailed to their office.

Ok, ok maybe those examples are a bit extreme, but that’s sort of what it can feel like if you’re an in-house IT guy, asked to cooperate with the EDD expert attorney from Big Named Firm X, only to discover that while this guy may have written some articles on litigation holds, or spoken at a CLE about the Federal Rules covering e-discovery, he doesn’t know the slightest thing about the technology.

Another interesting statement was this one about finding qualified people to work on EDD:

Hiring at corporations also has been difficult. Estimates are that by now maybe 20 to 30 companies have been about to acquire or develop respectable in-house expertise, but many others are hard pressed to find someone — anyone — competent, available and capable of taking the internal EDD helm.

Almost as quickly as those people are brought on board, others leave to join the provider ranks where they believe rewards will be greater and frustrations fewer.

I read this, and thought surely this applies to law firms as well, right? Of course, the obvious solution to keeping people in house is to offer greater rewards and fewer frustrations, but in legal departments, and law firms, I’m not sure that is possible. The culture is so “attorney-specific” in terms of giving senior attorney’s all the decision making power, and the rewards that come with it, that I don’t think it can be changed to give a technology expert, especially one that isn’t an attorney, enough authority to feel like they are doing meaningful work.

For example, go to your local bar association’s CLE seminars on EDD, how many IT people are speaking? How many non-lawyers are ever invited to speak about forensics, searching, deduplication, storage technology, etc.? If these topics are covered, it’s typically one of those 100 or 200 attorneys. When was the last time they offered a CLE in data storage, or understanding the basic types of email storage, and how to effectively search an email store? Wouldn’t it be great to have someone who knows this stuff talk to your IT people, whether it be from your legal department or outside firm? Sure would keep those IT folks from rolling their eyes as often as they do. (And they do, I’ve been on that side of the fence. It’s not pretty.)

But instead, the legal industry keeps insisting that attorneys are the end all and be all of legal knowledge, when EDD requires a different approach completely. This survey shows it fairly obviously to me. Your clients are crying out for someone who really “gets” the technology involved with EDD, and you keep sending them lawyers who can recite the FRCP, all while keeping your technical staff far away from view, never getting the credit they deserve.

It’s the legal departments and law firms that find a way to get cooperation between the IT experts, and the legal experts, and can recognize them both as equal parts of the EDD team, who will be the true “experts” in the field.

But what do I know, I’m just an IT guy. 🙂

5 Responses

  1. Litigation support
    | Reply

    Any professional support of non-lawyers to the lawyers on any legal issues is litigation support..am i rite admin

  2. Mike McBride
    | Reply

    No, there are lots of lawyers who don't do litigation, thus support work for their practice would not be litigation support. Litigation Support is a specialized area of work.

  3. Christine Taylor
    | Reply

    Mike, you couldn't be more right. I'm an eDiscovery analyst who came out of IT, and I am constantly astonished at the inability of the Legal community to closely involve IT. This is particularly the case at the corporate level where identification, collection and preservation happen. Or DON'T happen depending on how well corporate Legal works with IT. (Which usually is pretty bad.)

    Great post from the IT perspective, and makes me realize that I am not alone in banging my head against the wall.

  4. Craig Ball
    | Reply

    Bravo! Bravo! Bravo! You nailed it in pointing out that knowledge of some leading cases, the Federal Rules and maybe even some experience with a CLE and a TIFF production do not an expert make. Yet, many of those 200 "experts" and e-discovery "practice chairs" argue that the don't need to know the technology because they can hire someone to handle that. In the land of the blind, the one-eyed man is king.

    I can't tell you how many lawyer experts haven't the slightest idea where to look on a PC to locate a user's local e-mail stores! What they don't understand they dismiss as unimportant or characterize as someone else's concern.

    If there's anything I've learned about EDD, it's that you have to know many ways to skin the cat. Too many folks learned one way, and just keep trying to cram everything through that hole. As they say, "if all you've got is a hammer, everything starts to look like a nail."

  5. Mike McBride
    | Reply

    Thanks for the comments Christine and Craig. I will, however, question one small aspect of your comment Craig, and knowing what you do, I assume this is not what you meant. I do think it's entirely appropriate to "hire someone" for certain technical tasks. Forensics is certainly a good example of that, as someone with an IT background, but not certified in any forensics field, I'd be the first person to suggest we hire someone to do forensic collection. Certainly an attorney should hire someone to do EDD processing, or production sets, etc. whether that be in-house or an outside vendor. So I'm not convinced any litigation attorney needs to know the exact details of how to do these things. On the other hand, all of this "legal" work can only be done by the rest of us under the supervision of an attorney, and I'm not sure how much supervision there could be if they don't know the first thing about what's happening in the "black box", so to speak. And I don't know how fair to clients it is to hold yourself out to be "expert" when in reality it's the people you hired are the experts. "Pay not attention to the "man behind the curtain", if you will.

    It might be more efficient to let the man behind the curtain out to talk to the clients directly, instead of worrying about the lawyer's cloak of expertise.

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