Stop it!
Stop going to meet and confers with just a legal pad, a redwell of briefs, a pen and no plan. Those things you take are important, but you’re forgetting the plan. Stop entering into discovery agreements without considering ESI and getting the proper help and advice. Stop tiffing and printing everything because you don’t want to learn technology (or let your staff use it) - that approach is expensive. Don’t argue with your staff on that point, that war is lost. You don’t have to know technology. As one great litigator said to me recently:
"I don’t know the first thing about technology. I am a litigator and a good one (he is). I have folks on my staff to push to me what I need. I understand that they need technology. I understand there are associated costs. My staff will locate the technology expert appropriate for this matter."Stop with the discovery disputes over ESI - you’re upsetting the courts. They are unhappy and it’s making my job harder. Yes, maybe I make more money when you fight and mess things up, but I don’t enjoy it as much as I do when I help you plan well and help you win. You’ve seen the opinions written by judges upset over disputes about ESI mishaps, right? If you haven’t, comment here and I’ll hook you up with Roland Bernier or some other fellow lawyer who reads them every day. Stop throwing search terms against the wall to see what sticks with no testing or plan what-so-ever. You’re messing it up for those who have a plan. Stop making the discovery process way harder than it needs to be. Stop thinking that the more you produce, the more likely it is the opposition won’t find the smoking gun. Technology is going to find it. More importantly, stop making discovery more expensive than it needs to be. Yes, those of us on the “service provider” side must take some cost responsibility, and most of us do take that responsibility very seriously, but stop saying it’s our entire fault. A good friend recently said:
“You eDiscovery folks really built an industry out of nothing."To which I responded:
“Yes sir seems so, but didn’t lawyers do so as well? Sure, it was centuries ago, but at some point in the past there were no lawyers. I just happen to have been present when computers hit your desk and had the good sense to see what was coming and learn all that I could.”The point he really was trying to make is that his clients now have to pay for some new service. You do need another expert now. But, you need some expert on every case, right? Those guys/girls don’t work for free. Lawyers take pride in the education and many years of experience.
Please, for all that is holy, contact your litigation support department early and often. If you don’t have one, contact someone in the industry that knows what they are doing and can help you. Many lawyers take pride in their technical prowess and I applaud those that are savvy. However, unless it is your sole function to keep up with eDiscovery, don’t try it alone. Do what you do best – lawyer. Don’t wait until you are in the throes of battle either. Don’t think ESI does not apply to your case – it is present in virtually every case. If you don’t think so, chances are real good you’ve missed something. Yes, those technical professionals are likely going to cost something and you or your clients are going to have to pay for their services. If you don’t, you will eventually regret your choice. Sure, maybe not on this case. Maybe not on the next, but eventually you’re going to find yourself (or your client) spending way more than you might have spent had you engaged the right help at the right time. Be careful out there. Discovery can be a jungle, or a beach - your choice and you’re in control.
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