Features
Legal Technology 101: Part II, e-Discovery
By Ian Fisher, Law Student Writer / 2L
Ralph Losey (right),e-discovery author,joined Professor Bill Hamilton (left) in his e-discovery class Friday.
If Abraham Lincoln were to step into the offices of a modern law firm, chances are good he’d encounter a familiar sight — young associates poring over reams of legal papers.
“We’ve been graduating people out of law school who are prepared to practice law in the 19th century,” said noted e-discovery writer Ralph Losey, a shareholder at Akerman Senterfitt. “They’re prepared to work with Abe Lincoln, who had a partner and an associate. They went through papers, and they went to a trial courtroom.”
Losey said technology is driving electronic discovery into the most rapidly-evolving field in the legal profession, but law schools and lawyers are behind the curve in adapting. In general, law students are still trained to review a limited number of documents and build a case around what is given to them. That doesn’t bode well for efficient management of today’s cases, which can have millions of electronic documents in a variety of formats that must be reviewed, Losey said.
“You’re not trained to deal with 5 million documents. Cases now — with just 10 witnesses in a corporation — they’re going to have millions of documents,” Losey said. “You cannot look at each document. That’s the real world; it’s not the Abe Lincoln world of just having a few paper documents.”
Losey was one of a distinguished panel of experts who addressed the emerging importance of electronic discovery during an “E-Discovery Evening” held Oct. 28 at the UF which was co-sponsored by The Sedona Conference and the Levin College of Law.
“The Levin College of Law is one of the first law schools in the nation to offer a course in what is being called ‘e-discovery,’” said Robert Jerry, dean of the UF Levin College of Law and Levin, Mabie and Levin Professor of Law. “We’re very pleased that, thanks to Adjunct Professor Bill Hamilton, we are also now the first to co-sponsor a conference on the topic with the very well-respected Sedona Conference.”
Hamilton, a Holland & Knight e-discovery expert who organized the event, teaches an e-discovery class – one of the first in the country – at the Levin College of Law.
“The University of Florida should be very excited about its leadership in this area,” said Hamilton, who serves as co-chair of Holland & Knight’s e-discovery team. “Other law schools have got to step up to the plate and teach electronic discovery because it’s a critical skill out there that judges are looking for. It’s almost a survival skill at this point. That’s why The Sedona Conference® has come here in recognition of Florida’s leadership in the e-discovery education world for students.”
E-Discovery Evening panelist, Patrick Oot, Verizon’s director of electronic discovery and senior counsel, gave the example of Verizon buying out MCI to illustrate how complicated, and expensive, e-discovery issues can be. During the legal preparation for the buy out, more than 2.4 million documents — 1.3 terabytes of data — were reviewed. This required 115 attorneys at one firm doing privilege review and 110 attorneys at another firm doing timeline review. It took four months with attorneys working every day for 16 hours a day to finish the review, Oot said, resulting in legal billings of $13.5 million for outside counsel alone.
Oot recently read an article indicating only about 200 lawyers nationwide handle e-discovery issues well. Oot said that number needs to grow quickly and that advances in technology will streamline electronic discovery in the future.
“As our general counsel put it when we first started this [e-discovery] group, he said, ‘This is the only practice within the company that I actually see growing,’” Oot said. “Federal regulatory, litigation, antitrust, intellectual property — he sees those groups shrinking where we’re hiring people all the time.”
With the e-discovery field growing so rapidly, The Sedona Conference has been at the forefront of establishing best practices in the field. One aspect of e-discovery The Sedona Conference emphasizes is cooperation with opposing counsel on discovery issues.
“You want to be adversarial, obviously, but at the same time, I don’t think you want to be adversarial on the issues pertaining to what information is available,” said Joseph P. Guglielmo, a plaintiff e-discovery expert for Whaley, Drake & Kallas.
Ken Withers, a distinguished e-discovery writer with The Sedona Conference, moderated the event. Withers said two events have heightened the importance of e-discovery. The first of these were the amendments in 1983 and 1993 to the Federal Rules of Civil Procedure to facilitate greater discovery. The other driving factor in growing influence of e-discovery is the desktop PC and the exponential increase and ease in accessing information the PC makes possible.
“Discovery went from being a means to an end — getting to trial — to being the end in and of itself,” he said. “The number of cases that actually go to trial decreased, and it’s now less than 3 percent of all cases filed… . The stakes of discovery were thereby raised.”
All E-Discovery Evening speakers agreed that this is the future of discovery and students should try to learn about it.
“Be smart, look at where the future is, look at the trend,” Losey said. “This is where the opportunity lies. Take these courses on e-discovery; learn about it. Nobody else in the firms you go to are going to know anything about it, trust me… There are a few firms, but there are very few, so this is a time of opportunity. You’ve got to study this stuff.”
For more information about e-discovery and The Sedona Conference, visit http://www.law.ufl.edu/news/events/ediscovery/.
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