Educating Lawyers About Electronic Discovery

I just returned from Washington, DC, where Tom Mighell and I presented a daylong seminar on electronic discovery for a large legal department. Yes, that’s the Tom Mighell of The Kennedy-Mighell Report podcast.
I’ve been thinking a lot lately about how best to teach lawyers about electronic discovery. It’s not like you can avoid the topic. Like many lawyers, I get invitations to seminars on electronic discovery by mail or email nearly every day, especially with the December 1, 2006 effectivedate for the new amendments to the Federal Rules of Civil Procedure rapidly approaching.
Unfortunately, there’s a certain sameness to most of the EDD seminars I see. I had a lawyer tell me a few months ago that he was going to scream if he went to another electronic discovery seminar where speakers went on and on about Zubulake. I know the feeling.
I’ve been wanting to take a very different approach. I’ve done a presentation a couple of times this year on trends and predictions in electronic discovery, which is innovative and challenges people to think in some new ways about electronic discovery. It’s been gratifying to see how well-received that presentation has been.
I want to focus on the practical aspects of EDD, giving lawyers just enough learning about the technology so that they know how to recognize the key issues and ask the right questions. As usual, I’m more interested in applications (how you apply the new rules and technology to the issue in front of you) more so than learning academically about recent case law and abstract theories about the new rules. The concepts in EDD are easy; the devil truly is in the details.
And I wanted to present the topic with a litigator with experience who can also explain technology in a way that lawyers understand, and one who can explain the rules, the cases and the practical issues. Tom is perfect for that role and is an excellent presenter.
Our presentation, called “Electronic Discovery: The Basics and Beyond, had four parts: EDD/technology 101; the new rule; practical tips for the real world; and trends/predictions. In my mind, this is exactly what lawyers want and need to know at this point. My sense for this was confirmed as we started the session by heaing what all the lawyers in the room hoped to learn. We had everything they mentioned covered.
I was pleased with the discussion the presentation started and how we had given the lawyers in the room a good foundation and a vocabulary on which they could base that discussion.
As I tell people, my interest in electronic discovery is really one of education. I have no interest or angle in consulting or other projects. I like to teach lawyers about this subject, as does Tom, to help them think about it and address the challenges and point them to ways they can improve their practices.
So,this latest presentation was fun and rewarding. As I was telling Tom, it would be great if we could do some more of these together. I suspect we will. Let us know if you’d like to hear more about the seminar and whether it might work for your legal department or law firm.
As I prepared for the seminar, I was struck by how complicated these issues really are and the profound implications electronic discovery raises for us. Think about these three questions, which have rolled around my head for the last few days:
1. Is electronic discovery so complicated that it will drive most disputes to arbitration and other forms of alternative dispute resolution?
2. Will corporate clients and vendors working on records management “disintermediate” lawyers and limit the role of lawyers in the discovery process to as small a sliver as they can?
3. Will the response of lawyers to electronic discovery and the complexity of electronic discovery add enough additional burden to our court system to effectively break it?
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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Comments

  1. says

    Additional questions:
    1) Will there be a shake-out between those law firms (especially among the big boys) that are well-prepared to deal with electronic evidence and those that are not?
    2) Will there be an awakening by corporate clients that they need to assess their own litigation readiness with respect to e-evidence AND that of their outside counsel?