In my experience, there is a lot of talk about e-discovery and electronically stored info (“ESI”) in the legal business but for most practicing lawyers it doesn’t go much beyond just that – talk.  The talk itself is usually about what lawyers don’t know rather than how they are building their litigation practices around a fundamental component of the law.   The sheer volume of case law, in fact, addressing the centrality of electronic data to litigation and the ever changing landscape of e-discovery should give us pause and cause us to rethink our practice models. 

Let’s face it.  There is no dodging the ESI bullet.  Paper documents no longer even scratch the surface of a data pool in most law suits.  E-mail is ubiquitous, smart phones and PDAs are as well.  Most lawyers use these devices in their professional and everyday lives and to not realize or to ignore the reality – that we are constantly creating trails of information – is naïve at best, and negligent at worst.  In today’s tech climate, a firm needs to consider the information it will need to defend or prosecute a suit as priority one and then take immediate steps to ensure its preservation and the means to most efficiently harvest and process it.  When you do not understand those processes, or do not have a discovery plan in place that takes ESI into primary consideration, it can be a daunting and complicated task.

A recent LTN piece points out the crux of the ESI debate.  It no longer suffices to say “I don’t get it.”  In fact, competency and fluency in e-discovery practice is a crucial and telling reflection of a lawyer’s competency in general.  A practitioner’s approach to e-discovery shapes the entire structure of a case, however most lawyers see it at as peripheral issue. 

Rather than getting under things and exploring the relationship of ESI to the law and vice versa many firms turn things over to specialists.  There are literally hundreds of seminars and talks each week that speak to the implementation of data collection and management tools but they are often deliberately vague or superficial.  By giving a vague introduction to ESI, demand is created for the products out there that are designed to manage and parse out data. 



I am not saying that these products are inutile.  They are immensely helpful if you know how to use them and understand how they fit into your overall discovery strategy.  They are not panaceas, though, especially when one has not created a discovery plan that takes into consideration the types of data and its scope, as well as how that data should be integrated with the underlying facts and legal theories of the case. 

Instruction should be used to stir up a change in the overall legal culture and the law profession’s approach to ESI.  Most classes and lectures unfortunately say: “here is a crib sheet; but when it comes to nitty gritty, let us handle it.”    The end result is generally a huge bill and work product that is unwieldy or impenetrable and, in the worse case scenario, useless.  Failing to get one’s hands dirty when it comes to ESI creates a cycle of dependence and perpetuates ignorance.  Savvy clients who want to participate in the process of collecting data for a case will not be impressed with the attorney who says “I don’t get it.” 

ESI and e-discovery are a terra incognita that does not need to be shrouded in mystery.  Basic computer knowledge is a great place to start.  Understanding the fundamentals of how information is exchanged and stored is a huge step in the right direction.   It’s time to start digging in.