E-Discovery: On-the-Job Training or Trial by Fire?

Most practitioners are fully aware that understanding and managing e-discovery are skills that all young litigators need. The topic, however, is largely ignored in law schools across the country, especially when it comes to practical training. Meanwhile, the learning experience at law firms is typically ad hoc: associates are tasked with managing discovery on a matter, and it’s a sink or swim proposition. They may have the benefit of a knowledgeable more senior attorney who takes the time to guide them along. Just as often, however, the process is more akin to trial by fire. The more senior attorney may not have the knowledge or time to properly train new lawyers, and the firm doesn’t have a formal process for doing so. This sets up an especially high-risk situation for the associate and the law firm. These risks, along with the fact that many young associates view entry-level e-discovery tasks as mundane and less attractive than other paths, cause e-discovery to be viewed as a possible landmine—all risk and no reward.

Despite this reluctance, e-discovery is only going to become a bigger part of young lawyers’ lives. Evidence shows that e-discovery and time spent managing it is on the rise. One interpretation of publicly available data predicts that the total worldwide e-discovery software and services market will top $16 billion by 2021, with more than $11 billion being spent solely on services, largely due to the rise in the volume of electronic data. Forward-looking associates would do well to acquaint themselves with e-discovery, not just at a theoretical or case law level, but in practical terms as it affects day-to-day lawyering.

Indeed, lawyers have been sued for myriad e-discovery issues, such as the mismanagement of vendors, as in the case of Devon IT’s malpractice suit against Mitts Milavec in 2007. In 2011, McDermott Will & Emery was sued by J-M Manufacturing for e-discovery legal malpractice. Perhaps even more frightening, experts have concluded that the Wells Fargo customer data breach last year actually resulted from an attorney’s failure to simply review and produce data in a competent manner.

These are some of the more extreme examples of e-discovery mismanagement. On a more basic level, lack of knowledge and training can simply mean wasted resources, blown budgets, added stress, poorer outcomes, and ultimately, unhappy clients. The risks of ignorance can be profound, both personally and professionally, and can torpedo a promising legal career. But proper attention to developing the necessary skills and experience can allow young associates to not only avoid these risks but also enjoy a real opportunity to stand out. Managing e-discovery often serves as a proving ground for the junior members of a case team. They may dream of writing winning briefs, taking depositions, and arguing in court, but will start by managing document review, overseeing vendors, and becoming familiar with the evidence at a granular level. By managing e-discovery successfully, they can provide efficient case management and utilization of internal resources, a greater understanding of key facts, lower costs associated with the matter overall, improved ability to predict costs and timelines, and, hopefully, better outcomes for clients. Even if you’re not planning to be a full-time e-discovery attorney, acquiring these skills can help springboard you to other paths and make you a better lawyer regardless of the task you’re handling.

Obviously, the ideal solution would be for law firms to create formalized e-discovery training programs aimed at developing more practical skills. Until that happens, young attorneys can greatly benefit their own careers by taking a more proactive role in their e-discovery education. Seeking out mentoring and training from more seasoned attorneys in their practice group and asking to be exposed to more aspects of the e-discovery lifecycle is an ideal starting point, but there are other resources available as well. Litigation support personnel at many law firms are more than happy to help educate and train associates, especially as doing so can ultimately make their own jobs easier. In many cases, this may not require structured training and can be accomplished simply by asking questions throughout a matter, and learning how and why things are done. While associates sometimes shy away from this because they fear coming across as unknowledgeable, they typically find that they can make more informed decisions after acquiring these skills. Similarly, many e-discovery vendors can be a great educational resource. These vendors often manage one single aspect of e-discovery full time and have in-depth knowledge of that function.

In our experience, effective e-discovery management will typically require familiarity with 1) effective use of search techniques, 2) use of e-discovery platforms, 3) implementation of technology-assisted review, 4) quality control strategies that help ensure defensibility, 5) methods for dealing with different forms of data, 6) negotiating e-discovery protocols, and 7) managing proportionality to control costs.

Mastering these skills can provide a wealth of benefits to the associate separate and apart from ensuring a smoother e-discovery process. One of the most significant, but not always obvious, benefits is an enhanced understanding of the base facts and important documents in the case, which pave the way for effective deposition and trial preparation. Mastery of fact discovery will position any associate to be a valuable member of the case team throughout the matter. On the other hand, failure to grasp, manage, and master the process can lead to monetary loss or, even more seriously, knowledge deficiencies. In sum, the ability to successfully develop these skills can be extremely valuable to any lawyer looking to stand out amongst his or her peers and advance in the challenging world of complex legal practice.

About the Authors

Algieri 

Philip Algieri (phil.algieri@quislex.com), left, is vice president for legal services, and Robert Coppola (robert.coppola@quislex.com), right, is associate vice president for legal services, at QuisLex, a leading legal process outsourcing firm.

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