In case you can’t tell, the 0’s and 1’s mean “Spanish, Italian, French” in binary code. Many lawyers are multilingual, but can they speak the language of computers, email and the Internet? UF Law has become a leader in the fi eld of electronic discovery education and it’s a good thing because experts say graduates’ careers will increasingly depend on their knowledge, if not in reading the binary code itself, then in extracting the litigation-worthy nuggets from a profusion of electronic information and communication.
“The amount of papers a business generates is less than 1 percent of the total information that a business has,” said Ralph Losey (JD 79), partner and national e-discovery counsel for Jackson Lewis, LLP’s Orlando office. “All practitioners who are going to continue to litigate in the 21st century are going to have to know electronic discovery because without electronic discovery, you cannot get at
the truth because that’s where the truth lies. It now lies in computers — not in paper filing cabinets.”
The Florida Bar and the Florida Supreme Court are catching on. An oral argument March 7 before the Supreme Court considered The Florida Bar’s proposal to amend e-discovery rules in Florida civil procedures. The result of these proposed rule changes will usher in a new — experts hope more
more orderly — age of electronic evidence in Florida.
A NEW ERA OF EVIDENCE
Advances in electronic discovery can now be utilized by attorneys to search the contents of a person’s computer and information in this format continue to hang around — even after the delete key has been pressed.
“Before desktop computers became an office fixture, if I was a business person, for example, and I
wanted to do something that is a little bit shady, that hurts somebody else and I wrote a memo
about it, it would be marked ‘confidential,’ it would only go to certain people, and it would be kept
under lock and key,” said Ralph Artigliere (JD 77), former Florida 10th Judicial Circuit judge. “Today, if I have an idea as a corporate guy, probably I will have texted it to somebody or sent an email to somebody or written it down in some sort of a form that it gets put in places on the computer that I don’t even know exist.”
Bill Hamilton (JD 83) is a UF Law adjunct professor, a Quarles & Brady, LLP Tampa office partner and dean of the E-Discovery Project Management Department at Bryan University. Hamilton said the quality and quantity of information available in electronic discovery were nonexistent in a paper environment.
“What you see on the screen is the tip of the iceberg of the evidence that is on the computer,” Hamilton said. “The information is stored in many different locations.”
Electronically stored information is fragile and can be wiped and deleted from some locations. “In other respects, it is a little bit like superglue,” Hamilton said. “You can’t get rid of it that easily because there’s always some location where it pops up that hasn’t been completely eradicated.” Moreover, the very act of wiping information is discoverable.
And according to Artigliere, “People are writing things now on their computer that they would have never written down or typed or dictated to their secretary.” With e-discovery there are more places and more ways to find evidence, so “the world has now fundamentally changed for the better as far as getting to the truth,” Artigliere said.
Experts in the field, meanwhile, say UF Law is leading the way in training students how to get at that truth.
When it comes to teaching e-discovery in law schools, “the University of Florida is a clear leader,” said Losey, e-DiscoveryTeam blog founder and University of Florida Law adjunct professor. “There’s nobody even close to us.”
Less than 5 percent of law schools in the country offer an ediscovery course and the few that do usually include one or two credits per year, Losey said.
Charles A. Intriago (JD 66) confirmed Losey’s assessment.
“Most law schools don’t touch e-discovery,” said Intriago, a former editor-in-chief of the Florida Law Review who is president of the Miami-based Association of Certified E-Discovery Specialists (ACEDS.org). “Law schools are shortchanging this subject and it is a mistake.”
But not at Florida, noted Hamilton.
“(UF has) hands-on, get in the trenches, do e-discovery classes. We’re not just theoretical. (Our classes) are a combination of practicum and quasi-clinic — we’ve kind of wrapped it up all in one,” he said.
Losey said specialized knowledge in the new field is in such high demand that “some big law firms say, ‘we want you to take electronic discovery.’” Losey said big firms make this request because “the truth is most law firms don’t know anything about electronic discovery or they know very little and they are more inclined to hire a student if they have this knowledge.”
Hamilton, who runs an e-discovery practice group for Quarles & Brady, said he thinks of the UF e-discovery course as “a law student’s survival course.” Hamilton said students need to know how e-discovery “affects their practices to make sure that they can handle the responsibilities and, frankly, be zealous advocates for their clients when they get out in the field.” According to Hamilton, e-discovery management “is really a question of professional competency.”
“Florida is doing a service to their students (by providing e-discovery courses) and I think students should take advantage of that,” Artigliere said. “There is no turning back. That’s where most of our information is and will be.”
As e-discovery becomes ever more important to litigation, the sense of urgency also rises to prepare a new generation of lawyers steeped in its methods.
THE MORE THINGS CHANGE
The types of skills required by employers may have changed, but the demand for relevant skills has always been present in the workforce. Although Artigliere was an entry-level associate straight out of law school, he was given more responsibility in some areas than veteran partners of the Holland & Knight law firm where he began.
“Having that knowledge of Lexis research at University of Florida put me way ahead of my contemporaries and even the partners and associates in the firm who had more experience than I did,” Artigliere said.
Now fast-forward to today.
Just as Artigliere was able to gain cutting-edge skills in the 1970s, graduates of UF Law in the 21st century have the opportunity to be surge ahead of other attorneys when it comes to e-discovery.
“E-discovery is probably the only field I can think of where young people have a distinct advantage,” Losey said.
Students have this advantage because they can learn from experts in the field. At the same time, students tend to be more computer savvy than senior partners.
E-discovery not only provides an opportunity for students to contribute to their employers, it gives them an opportunity to serve as the gatekeepers to truth.
“If we’re going to maintain the system of justice that we know and enjoy, a system based upon the facts, a system based upon gathering the truth and finding out what the truth is, then we have to up our game on electronic discovery,” Losey said.
“I’m 60 years old and not every 60-year-old attorney is going to like computers like I do,” Losey said. “They (older attorneys) may not make this change. But the future generation has no choice. Computers are a part of their lives. They must go with this — and they will — and they are. And the good news is they’re getting it and there’s hope for the future in the next generation.”