Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this course on April 21, 2017. Go to https://www.lawinstitute.org/ to sign up for it.
The EDI assembled an all-star panel for its courses which includes federal judges, Xavier Rodriguez of the Western District of Texas; Paul Grimm of the District of Maryland; James Francis of the Southern District of New York; Elizabeth LaPorte of the Northern District of California; Craig Shaffer of the District of Colorado; Andrew Peck for the Southern District of New York; and Patrick Oot, the S.EC.'s former senior special counsel for electronic discovery.
The course entitled, "Why eDiscovery?" is really just an introduction to the EDI's certification program, which emphasizes the growth and ubiquity of electronic data; that knowledge of eDiscovery processes and law is an essential part of the competent practice of law; and that there are great opportunities for attorneys who excel in eDiscovery. Clips are given of both the judges listed above and other course teachers being interviewed on the general importance of electronic discovery.
Oot is the editor-in-chief of the EDI's distance learning initiative. He stressed the importance of of discovery as the most expensive component of litigation.
Judge Francis noted that the explosion of data has become so great that judges and lawyers won't be able to litigate without understanding the processes behind the creation and collection of data. It's essential for lawyers to understand technology in order to be able to do their jobs effectively.
Judge Grimm said that law students are often more accustomed to the use of digital media and the issues involving it than judges and senior attorneys are.
Reviewing documents should not be regarded as grunt work, because all of the evidence is to be found in the documents. The production of data has become the most expensive part of resolving legal disputes. Being efficient at this process is an important part of becoming an attorney valued by a client.
Judge LaPorte noted the importance of managing a case with the goal of making litigation just, speedy and inexpensive. These goals involve trade-offs with one another.
Electronic discovery relates to everything that a lawyer does - whether it's transactional or litigation work. It's not possible to be a competent lawyer without staying abreast of both technology and e-discovery law.
Judge Peck remarked that attorneys need to know about electronic information, and a young lawyer's familiarity with digital media doesn't mean they don't need to be taught about electronic discovery.
The Model of Professional Conduct, Rule 1.6 was modified to require attorneys to take reasonable steps to prevent the inadvertent or unauthorized disclosure of a client's information. This obligation is particularly challenging given the ease of duplicating and transferring digital data.
Case law is clear that lawyers are obligated to have a basic understanding of electronic discovery, both concerning proper adherence to document retention policies and having an understanding of how data is stored and produced. It is not sufficient to say that one allows the IT people to handle these problems.
It used to be uncommon to discuss the discovery process in law school, even though young lawyers would often be thrown directly into conducting discovery. The EDI aims to be front and center in the effort to prepare lawyers for discovery in the new digital world.