E-discovery technology has become an integral — and essential — element of the modern legal process, but a new report suggests attorneys are still struggling to embrace the technology.
A survey of 30 current or recently retired Federal Judges found that 60% said that the lack of cooperation between parties causes e-discovery problems, compared to 10% that said the issues stemmed from either lack of defensible compliance policies or lack of e-discovery technology education.
Jeffrey Ritter, the founding chair of the ABA Committee on Cyberspace Law, noted that while the survey sample size was very small it does make clear an unfortunate truth about e-discovery: Attorneys are still not up to speed despite the dramatic increase in digital evidence and amendments to the Federal Rules of Civil Procedure (FRCP) that provide guidance on the discovery process.
“Twelve years after the first e-discovery amendments, and over two decades since the ABA first encouraged revisions to the rules of civil procedure and evidence to adapt to the shift toward digital records, professional lawyers are failing to responsibly discharge their duties as officers of the court,” Ritter said.
The Federal Judges Survey: Judicial Perspectives on the State of E-Discovery Law and Practice, was conducted by legal software provider Exterro, Inc. in conjunction with BDO Consulting and EDRM/Duke Law. The report was designed to examine the legal community’s e-discovery technology proficiency, identify areas to improve e-discovery processes and outcomes, and study how 2015 FRCP changes are influencing how electronically stored information (ESI) is handled during legal cases.
The trend could continue to cause problems: According to the National Law Review, there are currently over 3,000 case opinions involving ESI and ESI-related issues nationwide. The report’s authors suggest that the biggest obstacles facing attorneys are their mindset and approach to using e-discovery technology, and Ritter agreed that this is a big factor.
“Most attorneys have realized that digital records, when properly preserved and produced, often serve as the best evidence of the truth,” Ritter said. “ESI deprives lawyers of their historic role as advocates to shape alternative versions of the truth from the subjective, oral testimonies of human witnesses. To become competent on ESI is to step away from the skills lawyers believe they are paid to perform.”
Amendments were made to the FRCP in both 2006 and 2015 to reflect the increased use of digital evidence and electronic discovery, but have done little to improve the e-discovery process, Ritter said. For example, Ritter pointed to the Civil Procedure Rule 37(e), which was designed to prevent failures to preserve ESI for court cases.
“In many respects, the revisions only provided counsel reasons to avoid positive collaboration,” Ritter said. “The increased judicial discretion granted under Rule 37(e) only invites greater chances for attorneys to oppose, drag one’s feet, or otherwise avoid the consequences of full and responsible preservation and production.”
Attorneys are also slow to develop their e-discovery competency, the survey found: Only 23% of judges strongly or somewhat agree with the statement “the typical attorney possesses the legal and technical subject matter knowledge required to effectively counsel clients on e-discovery matters.”
Almost half (46%) of the surveyed judges said that e-discovery education should be mandatory, either in law school or through continuing legal education courses.
Ritter agreed that mandatory training and e-discovery certification are both reasonable ideas to offset the trend, especially given that ESI will only continue to be essential to legal cases.
“E-discovery is complex; its proper execution is vital to sustaining the rule of law in the digital age in which we now live,” Ritter said. “The simple truth is that the evidence of the truth will increasingly be found only in the machines.”