Many lawyers have just not taken the time to get training in e-discovery.
The rules have changed. It’s no longer about “documents” in the sense of paper. It’s about getting information in a digital format, which is why the rules now refer to ESI – which refers to Electronically Stored Information.
What is e-discovery? It has been defined as “the process of identifying, preserving, collecting, processing, searching, reviewing and producing Electronically Stored Information (“ESI”) that may be relevant” in a legal proceeding. [See, Maura Grossman and Gordan V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, Federal Courts Law Review, 2013 Feds. Cts. L. Rev. 7 (Jan. 2013).]
So, the new battlefield in litigation is over getting ESI of your client ready for trial and getting the ESI from the other party.
Bigger firms and large businesses have developed their e-discovery systems, but small firms and solo lawyers simply have lagged behind in training. And most law schools are still not educating students on the many uses of technology.
Today there is a vast disconnect between the legal profession’s grasp of legal issues and its understanding of technology. The fact-finding process requires lawyers to focus on uncovering or disclosing electronic messages, Internet usage, word processing revisions, meta data, and other ESI. Whether requesting or responding to a request for electronic discovery, litigants must be familiar with their own and their opposing party’s computer system. This requires a working knowledge of the many issues associated with e-discovery.
And as we start using more and more technology in our lives (think smartphone as just one example), it will become more important for lawyers to become intimately familiar with technology and how to use it – not just in litigation, but in their practices and in advising clients. Data security and integrity controls are important for law firms, and we cannot advise clients on these issues until we learn to adopt those concepts in our own buisnesses.