Speaker 1: Welcome to Consider This, the popular podcast series brought to you by the Organization of Legal Professionals. I'm your host, Bridget Novak. This series will focus on the legal industry, current trends, substantive issues, and career perspectives. Each program will run approximately 15 minutes. We hope you stay tuned for this program and join us for others in the future. Today's show is part one of a two-part series that will take us into the brave new world of e-discovery. We will be discussing some of the challenges of this new world, the challenges facing us today, and some of those that are expected in the future. We will explore the different attitudes towards and some of the practices surrounding e-discovery here and around the world. We will also learn about some new federal standards and discuss how e-discovery is changing the legal landscape, including the staffing of cases, job descriptions, and professional development programs. We're extremely fortunate to have as our guest today, Douglas Mitchell, a litigation partner at Boies Shiller Flexner and chairperson of the board of OLP. Thank you so much for joining us today, Doug.

Speaker 2: Well, thank you for having me.

Speaker 1: As a top litigation attorney, Doug has had to grasp the new world of e-discovery very quickly and comprehend all its nuances and the ways in which it can affect cases, clients, staff, and billables. It's amazing when you realize how far we've come in such a relatively short time. E-discovery was really just beginning in the late 1990s when, in addition to the always-present boxes of documents lawyers and support staff had to deal with, they were now expected to keep up with, organize, and respond to requests for electronic data. And thus, e-discovery was born. But while people had lots of different ways to organize paper documents, one of the things we've discovered is that the way you search for electronic data can sometimes be as important as what you're searching for. Right, Doug?

Speaker 2: Well, that's very true. There are a number of problems, I think, that have been discovered over the years, not the least of which is that in the electronic world, a great deal of autonomy has been given to the actual creator of the electronic data to store things wherever they want to. And then in the years since electronic discovery has become sort of an identified discipline, the number of different places someone can store data has exploded. You have gone from a desktop computer that was fixed in a location at somebody's desk to a desktop computer, a laptop computer, a tablet, thumb drives, external hard drives, cell phones, SSD cards, and many other various forms of electronic storage. So the problems now are not just who has it, but who has it and where did they put it.

Speaker 1: And where do they put it and how to retrieve it, right? I mean, part of what we need to focus on today is a discussion of best practices or more precisely the desire and need to establish them.

Speaker 2: Well, that's correct. One of the things I think we need to remember as we talk about electronic discovery today is where we are in time, at least time in relation to the legal profession. And really, we are in a time of transition right now. Although as you've noted, electronic discovery began to really become a focus of attention back in the late 90s, the early 2000s, we are only really at the beginning of transitioning from a paper-based world where most of the data was created and stored in some paper format in filing systems that had been developed and matured over decades and perhaps centuries in some cases, into a world where data and information is created electronically and where the storage and information retrieval systems for that information is very, very young. It's not matured. It's not well-tested. And it's really sort of, in the vernacular, it's a Wild West kind of scenario when you're talking about the creation, storage, collection, and searching of electronic data.

Speaker 1: So even though, as you said, the field is in its infancy and many of the best practices are still being developed, there are some things, some technologies perhaps or some ways of divvying up the work that we can now agree should become the standard?

Speaker 2: Well, I think we're finding that as with any transition, you encounter a problem and then some really smart people begin to work on the problem and find solutions to it. We have found solutions for email, for instance, that have spanned the processes from simple email systems in the very beginning to things like Outlook, which are, in essence, databases of email, and then to email collection appliances like Clearwell and other systems, which add some intelligence to the email collection process. And as time goes by and as this problem becomes of greater interest to these people who try to develop solutions, there will be more solutions developed. The processes of identifying, collecting, searching data will become more seamless, more natural and secondhand. And I think some of the issues we're dealing with today will disappear in years to come and we'll be presented with new issues.

Speaker 1: Right. They'll disappear, but new ones will come down the pike. And those technologists will have to develop new solutions for those new problems. I mean, email collection appliances, whoever heard of that two days ago, right?

Speaker 2: That's correct. It's a relative... Well, it's not so relatively new, but in the space of time, it's not that old. And yet, I think within five years, we'll see something that goes beyond the Clearwell-type appliances now into far more sophisticated and far more effective methods of collecting electronic mail and other electronic documents.

Speaker 1: Well, I think that's part of the confusion in the industry is that all these new technologies are coming out to address these problems. But the legal industry, the law firms are kind of guinea pigs in determining what works the best and what's the most efficient and effective for clients.

Speaker 2: Well, you know, probably one of the greatest difficulties is the legal profession actually lags behind many other industries in terms of its information management technologies. And some of that is because the legal system itself requires a kind of authentication, preservation, and presentation protocol that makes it different to adapt quickly to changing electronic and digital technologies because you run into trouble with authenticating evidence in order to present it at trial or to use it in a motion for summary judgment. Lawyers sometimes take a while just personally for their own skill level to adapt from the ways that have become familiar to them to new ways that are more efficient and effective with newer technology. So I think that the legal system traditionally or the legal industry has lagged behind the rest of the business world a little bit. Having said that, there are a number of larger law firms, a number of larger corporations that have begun really to focus on the problems associated with electronic discovery and the cost of electronic discovery and how to make that a more effective and efficient process to do the things that lawyers do, which is essentially collect information, review and analyze that information, and then cull it down to a set of data that is essential to the purpose for which they've collected the data. I think that process will continue over the years and we'll become better at it. But during this transition time, I think we're going to see a lot of the kinds of growing pains that anyone experiences when they're just learning to do something new.

Speaker 1: Right. Once again, we're speaking to Douglas Mitchell, a litigation partner at Boies Schiller Flexner and chairperson of the board of OLP. Doug, in addition to the whats and the hows of recovering electronic data, there's also the question of who, who's doing it? eDiscovery seems to have blurred the lines a bit between paralegals, associates, IT staff, and blurred some of those job descriptions in the process. How are most firms dealing with this and how do you see this evolving?

Speaker 2: Well, I think you're very much right that there has been a blurring and perhaps a melding of those sorts of skills. It's no longer in a modern digital information creation world for a lawyer not to understand at least something about computer data, information creation, information storage, and information retrieval. By the same token, the lawyer's not going to be the technical person to go and physically collect that data or engage in a nuts and bolts kind of analysis to determine the integrity of the data. Very often, the law firm or the lawyer is going to hire an IT specialist, somebody who has some knowledge about technology, and that person is going to come in and he's going to do some of those more technical kinds of things. But the IT specialist nowadays just really can't rely on the idea that all he is doing is working with a computer. He has to realize that he is working with a computer in the context of, in some cases, a lawsuit or some other information request by a government entity, that there are rules governing how that information can be accessed, who can access it, methods that must be used to collect it, chain of custody questions and issues, and so the information technology specialist now needs to be familiar with some of the legal parameters that govern e-discovery. We have a situation where the law firm and the IT specialist vendor need to become more of a partner in some of the ways they approach electronic discovery issues that confront them in particular matters.

Speaker 1: Amy Quinton It's true. I mean, all the jobs in a law firm used to be, just yesterday, so clearly well-delineated and understood and cast in stone and salaries structured, but e-discovery has thrown a monkey wrench into all of that. So for legal professionals and those wanting to practice, how can they best prepare for this new merging with technology? I mean, are law schools taking note and starting to teach some of these skills and offer joint programs?

Speaker 2: David Morgan You know, law schools are taking note at some level, and I'm sure there are some law firms that have become actively engaged in electronic discovery preparation and education. Other law schools probably just note that it exists, but probably still focus on the basic ideas of what it means to be a lawyer. In some respects, being a lawyer is a way of thinking and a way of analyzing and a way of looking at things. And law school has never been particularly good about preparing somebody for every different aspect of what it will mean to be a lawyer, but they are very good at preparing lawyers to think and to reason. And then lawyers, I think, often need to exercise a little initiative and then take the skills they've learned in law school and go learn new things about the profession they practice. In the information technology world, I think that requires them to actually start using a computer, which I think most law students do today, and then go beyond that though and begin to understand how data is stored, how it's collected, how it's used, and begin to get into the flow of information creation, storage, and retrieval. And then I think they'll pick those skills up if they do that.

Speaker 1: Danielle Pletka, PhD, Ph.D.: Well, OLP offers a series of e-discovery certification programs and webinars. Who do you think should be taking these courses?

Speaker 2: David Morgan, Ph.D., Ph.D. I think a wide variety of people should be taking the courses, from attorneys to paralegals to litigation support vendors. If we think back to the idea that we are in a period of transition, by definition, periods of transition are circumstances where the underlying environment in which one operates is changing, and it requires the people who work or do things in that environment to learn new skills. It also requires that environment to establish a set of guidelines or competencies so that the marketplace of that environment can have some degree of reliability that the people who are performing services are doing so efficiently, effectively, and competently. And the OLP is attempting to provide those guidelines and the competency standards that the legal industry can use as they go through this period of transition. The OLP is providing a set of standardized testing certification courses that can prepare for that testing and help teach and train individuals who want to become involved more deeply in e-discovery issues in any of the different areas of the legal industry, and help them understand what the core competencies are, and then create a certification once somebody has mastered those core competencies so that other people in the industry can have a degree of confidence that a person with the certification will know and understand certain things about electronic discovery, and there will be a common level of an ability to rely commonly on each other, and that they'll understand what's expected, what should be done, and you won't have to reinvent the wheel every time you go looking for somebody to perform a particular task.

Speaker 1: Great information, Doug. Thank you so much for providing that. That's all the time we have today. Join us for part two of this program. Check back on the website, and you'll see it posted for downloading or listening to at that moment. It's been an honor and extremely informative spending this time with Douglas Mitchell, a litigation partner at Boies Schiller Flexner and chairperson of the board of OLP. I want to thank our audience for tuning in today and remind you that part two of this program will be available and other programs in the future on our website, that is theolp.org. Please let us know what topics you'd like us to cover and who you'd like us to interview on future programs. You can email us at info at theolp.org or call us at 760-610-5462. Once again, that number is 760-610-5462. Have a wonderful day, and thank you for listening to Consider This.