The Puzzling Resistance of Lawyers to Electronic Discovery

My recent comments about teaching electronic discovery to lawyers seem to have touched a nerve. I’ve had a number of people get in touch with me about the questions I raised. In addition, my friend and e-discovery guru Sharon Nelson raised two other important questions about EDD in a comment, namely:

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?

I had a great conversation today about the role of litigation support managers in all this (very, very important) and what I call the puzzling resistance of lawyers to electronic discovery.
It raised another question for you to consider, as I have been for a while, but, as yet, with no good answer. I’m surprised by the passivity of litigators, traditionally a group known for aggressiveness, when it comes to electronic discovery.
Here’s the question:

Does the passivity and reluctance we see in litigators an indication that protecting the quantity of billable hours, maintaining the status quo and staying in the comfort zone have become more important than winning cases?

I’ll raise the question for discussion, but, believe me, I’m not the only one who has raised this issue in the past year.
Lots of good questions out there on this topic. What are your favorites? Perhaps there would be some interest in doing a LexThink event that delves into these electronic discovery questions, especially one with a focus on the role litigation support managers and electronic discovery lawyers will play in the process. If that interests you, let me know – we’re working on putting together some future LexThink events.
[Originally posted on DennisKennedy.Blog (]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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  1. says

    Dealing with and thinking about edd on a daily basis, I realised, by dealing with outside and opposite counsels, that their “passivity and reluctance” is an indication of their reluctance to admit they don’t understand the very tools they use every days!
    In the past, and still, litigators had no problem to hire experts in domains that were not linked to law practice: medicine, engineering, accounting, etc. However, the big difference with edd is that it involves e-docs… Having a document production driven profession, lawyers would have to admit they do not understand how the documents (data and records) they create are stored, archived, preserved, retrieved, analyzed and reviewed automatically, etc.
    That being said, litigators tend to be scared of professional liability and therefore, I doubt they are “protecting the quantity of billable hours” because in order to do so, they would need to do the edd themselves… and they don’t!
    However, they are most definetely “maintaining the status quo and staying in the comfort zone” by tacitly and in a compleasant manner agreeing with the opposing counsel they will not enter the edd inferno…
    Seing the implications of not touching the e-docs in numerous cases, I have to say that not-admitting-they-do-not-undersand-edd has “become more important than winning cases”!

  2. Jeff Carr says

    The short answer is “yes”. But it goes far deeper than that. The profession is now built on not only a business model built on inefficiency, but one that looks mostly backwards while walking forward slowly. There is an inherent distrust of anything that brings systemization and order to what remains essentially professional piece work. There are ai and other tools available today that can reduce the amount of human interaction in the ediscovery process (e.g., Stratify and it’s ilk). These tools take hours away from the firms and threaten the business model focused on top line revenue growth as opposed to margin enhancement while reducing the overall cost to the client. Lawyers, as professional guild members, will continue to resist change and commoditization — but those elements will eventually prevail. The “disruptive technology” that may force that change may come from in-houyse counsel demanding change, or first movers creators of differnt firm structures with different economic models.

  3. says

    Your post has got me thinking. I am returning to college at 34 to complete my undergraduate degree so that I can ultimately go on to law school. My trouble has been that I don’t know what to major in. I have about 60 hours in core and business classes but I think I’m more interested in Computer Science but I could go Management Information Systems. Which of these fields would be better considering the way the field of law is going? My guess is that MIS would be easier and increase my GPA and therefore get me into a better school and I could always hire a consultant if that specialty was needed on a case.