One of the legal profession’s most powerful tools, eDiscovery, is also among the most poorly understood by attorneys. Surveys show that many attorneys are not knowledgeable about the proper use of eDiscovery tools and technology-assisted review (TAR). With electronic documents becoming ever more prevalent in business and government, attorneys who do not know how to properly use eDiscovery tools are doing their clients a disservice. At worst, they are being negligent in their duties.
Electronic documents are not going away; we may yet see the day when most businesses and government agencies are truly paperless, with the entire lifecycle of every document stored in electronic form. Traditional discovery tools (printing everything out using regular office software and reviewing each document by hand) will be woefully inadequate for reviewing these documents, especially compared with software tools that can automatically catalog, index and flag documents, separating the irrelevant ones from those that deserve closer human inspection.
The other advantage that eDiscovery and TAR have over traditional review methods is that the software tools prevent spoliation. Reading an email in a standard email client such as Microsoft Outlook changes the metadata, or information about that email, such as the date accessed. Such metadata could be important evidence in a trial. By not using a robust eDiscovery tool, the attorney has compromised the integrity of the document, potentially making it useless in a trial.
Attorneys not up to speed on eDiscovery tools and practices may damage their own clients’ cases, especially if their opponents are knowledgeable and can show a jury that the evidence has been tainted. Such attorneys are risking their practices to claims of incompetence or worse.
Why are so many attorneys so slow on the uptake? Opinions vary, but they mostly boil down to institutional inertia and a lack of education regarding the tools and techniques. The subject is not frequently taught in law schools, and schools that teach it have done so only recently. Attorneys not making the effort to educate themselves, and who expect the techniques they learned in law school to continue to serve them well, will be left behind.
The solution? There are amendments being considered for the Federal Rules of Civil Procedure to address eDiscovery, but continuing education of attorneys is necessary. Every litigation attorney has a duty to his or her clients to provide competent representation. Those who fail to do so by not keeping themselves up to date will find themselves on the losing side of too many cases, and will find clients taking their business elsewhere.
Written by Desh Urs
Desh Urs brings more than 20 years of entrepreneurial, start-up and Global 500 corporate experience in sales, marketing and general management to the customers of iBridge. He has led sales organizations as SVP at Qsent, Inc. and VP at Acxiom Corporation, and has focused on the usage of data in data distribution, direct marketing, fraud prevention, and law enforcement.
As a Vice President of Global Sales, Services, and Marketing at Silicon Graphics, Inc., Urs managed engineering and non-engineering functions, developing solutions in sciences, telecommunications, manufacturing, media, business, and defense intelligence, for companies with revenues of several billion dollars. During his tenure as Vice President at Think Tools AG and Brio Technology, Inc., he ran business development and alliances providing solutions in Business Intelligence and Decisions Cycle Management to Global 100 corporations worldwide. In the late 1980s, Urs founded Indus Systems, Inc., which he profitably sold to a systems integration company.
Urs serves on several Advisory Boards, as well as many company Boards, in the United States and India.