Cloud Technology Work E-Discovery Credit: wan wei/Shutterstock.com

Editor’s note: This article appears in the August editions of Corporate Counsel and The American Lawyer print magazines as “A Journey of Self E-Discovery.”

There’s a regular process that occurs inside most law firms about every three years or so, depending on the expiration dates attached to whatever service contracts the organization is maintaining with outside e-discovery providers.

Debbie Reynolds, data privacy officer at Eimer Stahl, describes it as a pendulum, a process by which every few years firms take a look at their ongoing budgets and expenditures to reevaluate whether or not they would be better served by bringing e-discovery process in-house.

“About every three years you can kind of reconsider, ‘Are we doing the right thing? Are we looking at the right software? Do we have the right staffing?’” Reynolds says.

Buoyed by cloud-given independence from expensive infrastructure and hardware, it’s become easier for firms to move the e-discovery process in-house. Still, if there’s one factor that could cause them to pump the breaks, it’s training. Or more specifically, the investment of time and capital necessary to keep the right people up-to-date on an area of practice that is ever-changing, thanks in large part to technology.

Why Training Goes Far

It’s better to get this out of the way up front: Walking into the office one morning and saying, “Hey guys, we do e-discovery now” is not an option, even if a firm does plan to sink a bundle into erecting a sophisticated infrastructure.

Investing in an array of high-powered e-discovery tech and software is all well and good, but putting it into the hands of an untrained staff is still akin to tossing a set of Porsche keys to someone who slept through the entirety of drivers ed. As David Hasman, litigation support manager at Bricker & Eckler, says, “The reality of it is that if you don’t have talent to drive that technology, that technology is useless.”

He acknowledges that while every practice group within the firm may not need e-discovery, there’s still enough of an overlap to make some general knowledge on the subject a worthwhile pursuit. Most of the incentive begins and ends with clients, specifically responding to their questions about where the dollar signs in their legal bills originate.

“Really, the biggest spend from a client’s perspective when you’re facing litigation is typically the discovery. … You as a lawyer better be able to talk to your client and educate them on the process, why it’s important and the costs associated with it,” explains Joseph Tate, director of e-discovery and practice advisory services at Cozen O’Connor.

What’s more, with big data on the rise across companies of all sizes, the use for e-discovery tools and techniques extends far beyond legal matters. Firms that limit the number of trained employees across each department could be potentially depriving themselves of additional opportunities for revenue.

Hasman says the bulk of his firm’s Relativity use isn’t even primarily related to e-discovery. For example, many of the firm’s clients have ties to the oil and gas industries, so Bricker & Eckler uses custom applications in conjunction with Relativity to help manage the logistics of building pipelines both domestically and abroad.

“By owning the [e-discovery] technology, bringing it in-house, having subject matter experts, it’s allowed us to expand our portfolio into areas that we really would never be able to do if we vended work out all of the time,” Hasman notes.

Unlike firms, the factors driving e-discovery training in corporate legal departments may be less about creating new revenue streams and more about trying to keep up with market forces. The results from e-discovery company Exterro’s 2018 In-House Legal Benchmarking Report showed 69% of legal teams conducted most of their litigation in-house, a 50% increase from 2017.

A Teachable Moment (or Several)

So yes, training is a must for firms or legal departments looking to bringing e-discovery in-house—but that doesn’t mean it’s easy. Some of the challenges are more obvious than others, but almost all are insurmountable if an organization’s top leadership doesn’t get on board with  training from the beginning.

Cozen O’Connor’s Tate notes that this problem can be a real possibility in law firms. “You still have some old-school partners … who just don’t get it. They’re like, ‘Why are we doing this? This doesn’t make sense,’” he says.

To be sure, corporate legal departments aren’t immune to the whims of foot-dragging folks either. George Socha, a managing director in BDO’s forensic technology services practice, pointed out that some companies have never had a reason to focus on e-discovery. Still, a  sudden spike in litigation can force their hand.

But necessity does not always translate to enthusiasm, at least in the eyes of some of the companies that Socha has spoken to about starting down the e-discovery path. “Their response is, ‘You’ve got to be kidding? This is what’s going on? This is insane,’” Socha says.

To be fair, e-discovery is a relatively dense subject to wrangle, and getting the material to make sense of it is one of the biggest challenges inherent to training. Even if trainees are enthusiastic to engage with the subject matter, the process can still be like trying to teach someone a second language.

For Tate, who is fluent in tech-speak, there’s a process of having to almost reverse engineer what he already knows to explain it in a way that is accessible for a non-tech audience. Some of the terms that have been known to spark confusion aren’t even among the more robust in the e-discovery lexicon—like “gigabyte.”

Once the groundwork for that basic level of understanding is laid the process does get easier. But it still takes time. And with firms and corporate legal departments striving for increased efficiency, convincing them to make time for e-discovery training might be a tough sell.

Of course, it’s not just a question of increasing training at legal departments and law firms, but also of making sure such training is conducted by professionals and covers topics that are specific for each organization. ”If you’re training people on how to go out and collect from mobile devices then that’s probably a different trainer than regular messages,” Socha says.

Eimer Stahl’s Reynolds sees training as a continuum, a practice that builds upon itself until some degree of proficiency starts to take hold. Teaching people the motions or mechanics of how to use a particular piece of software or equipment is one thing, but she thinks that proper training has to extend beyond the “how” and into the “why.” And that also takes time.

“You can teach someone how to open a database, do searching and things like that, but the thing that is harder to grasp is why you do a certain thing for a certain result. So a lot of time, people may have the tools but they may not know in what situation they need to use one tool or another,” Reynolds says .

Pay It Forward

Good news first: Many of the problems outlined above can be addressed via well-thought-out training regiments and a moderate expenditure of resources both old and new. The bad news is that there may be some light travel involved.

In May, Tate journeyed up to Cozen O’Connor’s office in Toronto to deliver one of his e-discovery road shows that serves as sort of a primer to the field, touching on fundamentals like reviewing, coding and producing. It’s potentially a more palatable alternative to hiring an outsider to conduct training at each of the firm’s far-flung locations. “When you have a firm that has offices all over the country, we feel it’s really important to get out there [and] get in front of the various offices,” Tate says.

Still, he can’t be everywhere at once. When it comes to knowledge, Tate appears to subscribe to a trickle-down theory. He receives emails daily from The Sedona Conference or other sources containing fresh e-discovery case law and other developments in the field so that his curriculum remains up to date. “I’m doing that every day. … For me, who is ultimately the trainer, I have to make sure that I’m putting forth the effort,” Tate says.

And then there’s the associates program that Tate and Cozen O’Connor developed that riffs on the concept of paying it forward. He and his team identified a group of 12 two-to-five-year associates to train on e-discovery and eventually turn into subject matter experts in their own right.

The idea is that these people will then turn around and spread that knowledge among their own teams and co-workers. Tate views it as kind of a quid pro quo situation. “They get the benefit of having this knowledge, and then it helps us to kind of disseminate the information,” he notes.

Failing that, Tate has also been working on an e-discovery playbook that the firm’s employees will be able to access online. Variety is important in e-discovery training since one lawyer might not learn the same way as the person occupying the office next door.

Reynolds says that Eimer Stahl deploys a variety of e-discovery training techniques, but one in particular may be helpful in cutting through the overall density of the subject matter. Over the period of a year, the firm collects questions from employees related to e-discovery and then compiles them into a top 10 list complete with answers. “And we’ll write a training manual so that they have a takeaway, so hopefully that top 10 list won’t come up next year.”