Talking to people deeply involved with, or reading cases and articles addressing creating, transmitting and receiving, preserving and protecting digital data, acquiring and exploring such data forensically, and gathering, reviewing and producing e-discovery, one sees over time the same pattern. At first (and here it is the pandemic that is the situation and that occasioned the discussion and ensuing actions), the response to changes or suggested changes was to label them “impossible”: their cost, the pandemic would not last forever, the expenses proposed in making changes would bring down profitability to the level at which businesses and law firms could not continue to operate. But as things have to continue, changes are made and soon the impossible becomes first the possible, then the likely and, finally, the inevitable. The IT issues are dealt with, the cost is measured not against previous years’ profits but the probability of having to close down if the changes were not made, and what seemed strange and unusual when the problems first surfaced—so many working from home, for example, occasioning strong, fast and secure internet connectivity of workers to a “cloud” server (or two, or 10) that houses all business and client data, along with IT techs constantly on patrol to ensure that no one has hacked into the system, the cost of these services—becomes the day-to-day life of a business and a law firm. In this month’s column I discuss the aforementioned pattern.
Prior to the pandemic, there was a familiar theme with regard to e-discovery. Clients and their law firms producing e-discovery would fail in some way—take too long, miss important documents, and so on—and would respond to motions and criticism generally with the claim that they cannot do what is being demanded of them. At the same time, tech experts were scratching their heads and pointing out that what the clients and firms were saying was too hard was yesterday’s news, and it was just that the clients and firms were not “geeky” enough to see that what they saw as exotic was run of the mill in the tech world. The firms, staying away from hiring tech geeks to be a part of their everyday world, did not see, until experts came in to try to solve the problem before opposing counsel’s motion for sanctions was filed or ruled upon (or during or after the imposition of sanctions, depending upon how stubborn counsel was), that what they thought was far-away and exotic was not, and it was counsel’s lack of knowledge, combined with the stubbornness counsel believed it had earned by being made “partner” or chair of this or that department or firm concern, that led to the legal issues, rather than the tech world’s lack of accessible solutions.