Tech ignorance a major hurdle to conducting modern litigation

Guest Post by Michael Goodwin

Although recent changes to the ABA model rules specifically require technological competence, many lawyers remain unapologetic luddites. According to one federal judge, this lack of tech savvy is a major hurdle conducting modern litigation efficiently.

In the Fall issue of the journal Litigation, United States Magistrate Judge Patrick J. Walsh takes lawyers to task for what he perceives as a failure to educate themselves on basic technology:

Lawyers need to be versed in technology if they are going to be successful in discovery. If they are not, they should find someone in their firm who is and bring that person into the case for the discovery phase. Because I find that the lawyers are often unable to adequately discuss discovery of electronically-stored data, I often require them to bring the client’s information technology person to the hearing or have that person available by telephone to explain what the company is capable of retrieving and the time and costs that would be involved in doing so.

The failure to articulate the logistics and costs to find data, particularly electronically-stored data, is often fatal to arguments that the discovery sought is unduly burdensome or disproportionate.

A modicum of self-education is required, but like many lawyering skills, competently handling e-discovery is as much about asking the right questions, and finding out to whom they should be addressed. Learning the necessary technological concepts to manage e-discovery does not require a degree in computer science or a formal education in information technology, but it usually does require consultation with people who have that background. As Judge Walsh observes in the article, the client’s employees should be key members of the e-discovery team. These are the people who are usually in the best position to know where their ESI “lives,” how to capture it, and how much it will cost to do so. At least one landmark decision in e-discovery jurisprudence endorsed active collaboration with clients in the e-discovery process:

[I]f you are knowledgeable about and tell the other side who your key custodians are and how you propose to search for the requested documents, opposing counsel and the Court are more apt to agree with your approach.

Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, 192 (S.D.N.Y. 2012). U.S. District Judge Shira Scheindlin made similar observations almost a decade ago in Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 439 (S.D.N.Y. 2004).

While obtaining appropriate tech skills does require some effort, lawyers aren’t alone. Teamwork, along with a willingness to learn, goes a long way.

Michael Goodwin is a litigation attorney at Jardine, Logan & O’Brien in Minnesota. Michael has experience in a range of practice areas, including government liability, insurance coverage, products liability, and employment law. He can be reached at mgoodwin@jlolaw.com.

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