We are the transitional generation in terms of the shift from discovery in a world geared to information on paper, to one where paper is largely an afterthought. Today’s airline boarding pass is a screen shot of a bar code, gate, time, and seat number. We print it in case TSA can’t scan our phone, then trash it when we touch down.
Growing up, the organization of information on paper was so ingrained in our education that we take our “paper skills” for granted, even as paper has all but disappeared. We learned to color inside the lines. Put our name and the date at the top of our papers. Organize alphabetically. Staple and paper clip.
We learned the structure of a business letter. Date and subject go here, salutation there, and don’t forget the cc: and bcc: addressees at the bottom.
All of it marched more-or-less into a common culture of paper records management. Correspondence flowed into files, folders, drawers, cabinets, and file rooms. Everything had a place, and everything depended upon information being in its place. That is, everything depended upon organizing information from its creation and all along its path until it found its semi-permanent place in the storage and retrieval system.
As information went digital, we clung to metaphors of records management. The screen icons remained files, folders, and even envelopes. But while we pretended digital information was still like paper, our culture of records management collapsed. The fleeting phone call and the enduring business letter or “memo to file” all morphed into email. Subject lines ceased to reliably describe contents. File clerks became baristas and file rooms became server rooms. Everyone was left to their own devices — literally — in terms of information management. Computerized search, they promised, would do away with all that pesky document management.
And, in many ways, the promise was kept. We draw on vast reservoirs of information using search tools of such instantaneous ingenuity and complexity that we rarely reflect on what transpired for us to find that Chinese restaurant in San Francisco or convert United States dollars to Brazilian reais at market rates. We’ve been content to leave it to the geeks.
And there’s the nub of the problem in electronic data discovery. As information stopped being like paper records and everything became databases, lawyers were content to leave organization to the geeks. We can’t imagine a competent lawyer not knowing how to find a document in a file folder or cabinet; yet, oddly, we can’t imagine a lawyer knowing how to fashion a competent electronically stored information search protocol or query a database. We barely expect lawyers to know what ESI protocols and databases are. We’ve set the bar too low for the Bar, and clients and judges are suffering as a consequence.
Part of the problem is that the practical education of lawyers has long depended upon veteran partners handing down the lore of lawyering to associates. But when it comes to e-discovery, veteran lawyers have nothing to share. “Back in the day” war stories about Bankers Boxes in sweltering warehouses aren’t much help when you’re standing in an icy server room.
When we do try to teach e-discovery, we elide over what makes EDD challenging: the technology. Most courses teach the law of e-discovery and give short shrift to the “e.” Well, guess what? The law of e-discovery isn’t all that hard to master! You can learn to spout “not reasonably accessible” or “meet and confer” all the livelong day, and you’ll still be as useless as teats on a boar hog when it comes to bringing off an EDD effort that works without waste.
The transitional generation lawyer responds, “I’ll hire someone who knows that stuff.”
Okay. That’ll work … for a while.
But someday soon, it will be clear that lawyers can learn two things — and sooner still, clients will tire of paying for their lawyers to pass the heavy lifting on to e-sherpas.
I say, let’s start learning to carry our own briefcases when it comes to digital evidence. Let’s stop kidding ourselves that this isn’t something we need to understand, and stop being so damned afraid to get our hands dirty with data or look like we might not be the smartest person in the room because we don’t know what goes on under the hood!
I recently asked a speaker on technology-assisted review for his thoughts about the respective strengths and weaknesses of the various techniques used to cluster documents in predictive coding. He replied that he didn’t know and didn’t need to know.
He said, “I don’t need to understand how a jet engine works to fly on an airplane.” I think he forgot that, as lawyers, we are the pilots, not the passengers. We are ultimately responsible for the integrity of our craft.
It breaks my heart when law students question why they need to learn about hashing or unallocated clusters. “The lawyers I talk to say this is stuff they hire people to handle.” How am I to respond? The lawyers you talk to choose to believe that what they don’t know can’t be a measure of their competence?
Each of us in the transitional generation has to make up our own minds about what we need to know. Like the citizens in H.G. Wells’ The Time Machine, we can choose to be subserviant Eloi (child-like, frail) or dominant Morlocks.
But let’s not kid the next generation of lawyers that they have that choice. They will little know or need our paper-centric skills, and we do them grievous injury when we assure them it’s someone else’s job to understand information technology. We cannot be their mentors on these things, and their easy fluency with consumer technology is insufficient, by itself, to manage e-discovery. They need to learn more than we did, and the best help we can give them is to make sure they understand that.
And we can’t stop there. We have an entrenched leadership of lawyers with 20 to 30 years’ experience who cannot simply be idled as we wait for them to shuffle off this mortal coil. We have to re-educate our lawyers — even the gray hairs. It’s a task made harder by the reluctance of lawyers of all ages to admit there’s a gaping hole in their skill sets that they are patching with the green poultice of wasted client money.
Hard, but not impossible. I imagine a world where lawyers can and do learn where information resides, the forms it takes, the useful metadata that surrounds it, and effective ways to search, manage, and present modern evidence without spending so much that no one can afford to turn to the courts to resolve disputes.
I see lawyers who roll up their sleeves, use good tools, and get their hands dirty with data. These lawyers have evolved from Homo Erectus to Homo Electronicus. And they will thrive.
Craig Ball is an Austin, Texas-based trial lawyer and computer forensics and e-discovery special master. Email him at email@example.com.