Given the enormous amount of data now involved in litigation, skills in eDiscovery have become crucial
By Carrie Bowker
YOUNG LAWYERS OFTEN lament that law school does little to prepare students for the practice of law. While students develop legal research and writing skills, they emerge from law school ill-prepared for the realities of practice. As a result, relevant practice skills are typically acquired during articling and the early years of practice. This poses a problem when it comes to eDiscovery, since many practising lawyers lack a well-developed skill set in this area and are unable to properly instruct and guide young lawyers.
This knowledge gap is the result of the rapid expansion of eDiscovery in recent years. One need only consider the volume of emails and electronically generated documents in the workplace to imagine the amount of data involved in present-day litigation. In large-scale litigation, the document count can be in the hundreds of thousands, and the cost associated with eDiscovery can be high. It has been estimated that eDiscovery expenses comprise 40 to 60 per cent of the overall cost of litigation. With clients demanding lower rates and greater value for their dollar, lawyers need to be able to plan and execute an organized and cost-efficient eDiscovery process.
“When new lawyers come out of law school, almost all have no idea what eDiscovery involves and the complexities surrounding it,” says Anne Glover, partner and head of the eDiscovery and Document Management Group at Blake, Cassels & Graydon LLP. ”While more and more lawyers are gaining expertise in this new area of law, many law firms, government departments and companies still do not have lawyers with this type of expertise. Young lawyers are often left to figure this complex area out for themselves, and serious mistakes can occur when dealing with large volumes of documents.”
The eDiscovery process has become a substantial phase in litigation. This is when the story of the case unfolds, and lawyers often discover new information and key documents. A thorough document review enables one to build a strong litigation strategy, and to categorize documents in a way that enables quick retrieval of desired information. At the same time, mishandling eDiscovery can have serious consequences, such as the inadvertent production of privileged or confidential information.
A number of well respected US firms have made the headlines for such alleged errors. In 2011, a company filed what has been referred to as the first ever eDiscovery malpractice suit against its counsel. In this US case, the plaintiff company alleged that thousands of privileged documents were wrongfully disclosed to the opposing side. In another instance in 2012, a large US law firm mistakenly released documents that it had fought for years to withhold. Missing a needle in the haystack of documents could also result in the failure to discover documents that are hurtful to the case until they are presented at examinations for discovery.
Education in the area of eDiscovery is essential to managing what can often seem to be the overwhelming task of reviewing a high volume of documents and applying the required test to determine what information needs to be produced to opposing counsel. Graduates possessing strong eDiscovery skills would be at an advantage as they enter the workforce, and these skills would undoubtedly benefit employers as well. “The advantages are many — young lawyers would understand the steps in the eDiscovery process, the types of new technologies available and what they can do, the emerging case law in this area, and the right questions to ask. To be a lawyer practising litigation today, or managing litigation, these skills are necessary,” says Glover.
EDiscovery skills are also an asset for graduates interested in pursuing alternative career paths. With eDiscovery playing a more prominent role in litigation than ever before, more and more positions are available in the field. Given that the demand for associates in traditional roles has decreased in recent years, a growing number of law school graduates are pursuing non-traditional work. Lawyers specializing in eDiscovery can find positions within large firms, or as external consultants and project managers.
In short, eDiscovery is a rapidly expanding area that underpins a fundamental phase of the litigation process. Law school curricula must evolve along with the changing legal environment. Law students need to be provided with an education that prepares them for the realities of practising law, and eDiscovery is an essential element of modern practice.
Carrie Bowker, LL.B., works in the Legal Project Solutions Group at Deloitte LLP. She can be reached at [email protected].
By Carrie Bowker
YOUNG LAWYERS OFTEN lament that law school does little to prepare students for the practice of law. While students develop legal research and writing skills, they emerge from law school ill-prepared for the realities of practice. As a result, relevant practice skills are typically acquired during articling and the early years of practice. This poses a problem when it comes to eDiscovery, since many practising lawyers lack a well-developed skill set in this area and are unable to properly instruct and guide young lawyers.
This knowledge gap is the result of the rapid expansion of eDiscovery in recent years. One need only consider the volume of emails and electronically generated documents in the workplace to imagine the amount of data involved in present-day litigation. In large-scale litigation, the document count can be in the hundreds of thousands, and the cost associated with eDiscovery can be high. It has been estimated that eDiscovery expenses comprise 40 to 60 per cent of the overall cost of litigation. With clients demanding lower rates and greater value for their dollar, lawyers need to be able to plan and execute an organized and cost-efficient eDiscovery process.
“When new lawyers come out of law school, almost all have no idea what eDiscovery involves and the complexities surrounding it,” says Anne Glover, partner and head of the eDiscovery and Document Management Group at Blake, Cassels & Graydon LLP. ”While more and more lawyers are gaining expertise in this new area of law, many law firms, government departments and companies still do not have lawyers with this type of expertise. Young lawyers are often left to figure this complex area out for themselves, and serious mistakes can occur when dealing with large volumes of documents.”
The eDiscovery process has become a substantial phase in litigation. This is when the story of the case unfolds, and lawyers often discover new information and key documents. A thorough document review enables one to build a strong litigation strategy, and to categorize documents in a way that enables quick retrieval of desired information. At the same time, mishandling eDiscovery can have serious consequences, such as the inadvertent production of privileged or confidential information.
A number of well respected US firms have made the headlines for such alleged errors. In 2011, a company filed what has been referred to as the first ever eDiscovery malpractice suit against its counsel. In this US case, the plaintiff company alleged that thousands of privileged documents were wrongfully disclosed to the opposing side. In another instance in 2012, a large US law firm mistakenly released documents that it had fought for years to withhold. Missing a needle in the haystack of documents could also result in the failure to discover documents that are hurtful to the case until they are presented at examinations for discovery.
Education in the area of eDiscovery is essential to managing what can often seem to be the overwhelming task of reviewing a high volume of documents and applying the required test to determine what information needs to be produced to opposing counsel. Graduates possessing strong eDiscovery skills would be at an advantage as they enter the workforce, and these skills would undoubtedly benefit employers as well. “The advantages are many — young lawyers would understand the steps in the eDiscovery process, the types of new technologies available and what they can do, the emerging case law in this area, and the right questions to ask. To be a lawyer practising litigation today, or managing litigation, these skills are necessary,” says Glover.
EDiscovery skills are also an asset for graduates interested in pursuing alternative career paths. With eDiscovery playing a more prominent role in litigation than ever before, more and more positions are available in the field. Given that the demand for associates in traditional roles has decreased in recent years, a growing number of law school graduates are pursuing non-traditional work. Lawyers specializing in eDiscovery can find positions within large firms, or as external consultants and project managers.
In short, eDiscovery is a rapidly expanding area that underpins a fundamental phase of the litigation process. Law school curricula must evolve along with the changing legal environment. Law students need to be provided with an education that prepares them for the realities of practising law, and eDiscovery is an essential element of modern practice.
Carrie Bowker, LL.B., works in the Legal Project Solutions Group at Deloitte LLP. She can be reached at [email protected].
