Mind the Gap: Innovative Efforts to Improve the e-Discovery Process

On Dec. 1, 2006, the Federal Rules of Civil Procedure were amended to address the growing complexities raised by the increased proliferation of electronically stored information (ESI). Although these amendments provided a modicum of clarity, many problems persist and more continue to arise. There is little doubt that many of these problems stem from the fact that e-discovery is primarily driven by technology, which has a natural rate of change that far outpaces the notoriously conservative legal field ' a trend that some are trying to change.

While many scholars and practitioners continue to simply lament the widening gap between “ideal” e-discovery regulations and the painful realities of the current legal system, a growing minority from both the bench and bar are working hard to fill the void in a number of innovative ways.

Bridging the Gap

One of the latest efforts to bridge the gap comes from the Western District of Pennsylvania. On Nov. 16, 2010, the Board of Judges approved the establishment of the Electronic Discovery Special Masters (EDSM) program to assist litigants in certain cases where e-discovery issues arise. When necessary, the court or the parties can decide to appoint an EDSM from a special pool of candidates previously approved by the court.

To qualify as an EDSM, a candidate must meet specific criteria set by the court. The court's Alternate Dispute Resolution Implementation Committee, chaired by Judge Joy Flowers Conti, developed and approved the required selection criteria, which includes active bar admission, demonstrated litigation experience (particularly with e-discovery), demonstrated training and experience with computers and technology, and mediation training and experience.

If appointed, the court will establish the scope of the EDSM's duties which may include, but are not limited to, developing protocols for the preservation, retrieval or search of potentially relevant ESI, developing protective orders to address concerns regarding the protection of confidential information, monitoring discovery compliance and resolving discovery disputes. The EDSM may also present findings of fact or conclusions of law to the court; however these must be issued as a report and recommendation that will be subject to de novo review and opportunities for objection by the parties.

“The judges in the U.S. Court, Western District of Pennsylvania, have indicated that they expect the use of e-Discovery Special Masters to increase here and around the country over the years ahead,” says Richard Littieri, e-discovery counsel and approved EDSM for the district, further stating that he “suspects that other jurisdictions will observe their use here and, if warranted, create similar programs of their own.”

While it is still too soon to assess the effectiveness of the new EDSM program, another high profile, local e-discovery program reported significant success in the use of discovery liaisons. The Seventh Circuit Electronic Discovery Pilot Program (www.discoverypilot.com/about-us) noted in its May 2010 report on Phase One of the multi-phase program that the participating judges “overwhelmingly felt” the program had a positive effect on the test cases, and “[i]n particular, the judges felt that the involvement of e-discovery liaisons required by [the program] contributes to a more efficient discovery process.”

Courts are not the only actors pushing for e-discovery liaisons. In Alabama, two practitioners have co-founded the American College of e-Neutrals (ACESIN) (www.acesin.com) ' a new e-discovery liaison program with a novel twist. Recognizing that many of the e-discovery challenges stem from not only a lack of education, but a lack of cooperation as well, ACESIN believes “e-Mediations” are the key. Like a special master, certified e-Neutral Fellows possess special e-discovery expertise that allows them to assist parties in conducting an efficient and cost-effective e-discovery process. Unlike special masters, however, e-Neutral Fellows specifically provide this service from an alternative dispute resolution (ADR) standpoint. The process, referred to as “e-Mediation,” blends the skill set of an e-discovery liaison with that of a mediator in order to facilitate a cooperation-based e-discovery process. Prospective e-Neutrals can become an e-Neutral Fellow by applying to ACESIN. Those in need of additional training in order to meet the e-Neutral qualifications can also attend a training course periodically offered by the organization.

Efforts like the EDSM program and ACESIN e-Neutrals, though still unproven, are encouraging and their premise is supported by positive findings from the Seventh Circuit's Pilot Program. These programs reinforce the notion that significant portions of problems in the e-discovery process stem from a general lack of knowledge, which e-discovery liaisons can provide until the bench and bar at large catch up. In that same vein, however, the liaison programs evince a deeper, systemic problem that needs to be addressed ' the need for e-discovery education in the legal community.

Closing the Gap

The reality is that e-discovery is a rapidly growing body of law that demands its own attention. For obvious reasons, no attorney would represent a client in an area of law without possessing the requisite knowledge ' and the same logic applies to e-discovery. Yet, rising discovery costs and the number of cases involving sanctions have directly corresponded over the past three years. It is becoming increasingly clear that before real improvement in the e-discovery process can be made, law firms, individual litigators and even judges must begin to invest in themselves by embracing some form of e-discovery education.

Law schools are arguably in the best position to address the e-discovery knowledge gap, but most have been surprisingly reluctant to answer the call. In the meantime, innovators from every corner of the e-discovery world have begun providing opportunities for serious education designed to fit the needs of any practitioner.

One of the newest e-discovery education programs is the E-Discovery Team Training Program (https://www.e-discoveryteamtraining.com), founded by practitioner and e-discovery expert Ralph Losey. The program is comprised of 62 classes and is an extension of a course originally designed by Losey for law students at the University of Florida, but is now available online to any registered subscriber. The comprehensive, in-depth coursework takes anywhere from 50 to 400 hours to complete and is taught by Losey, with additional materials and commentary provided by industry experts and leading e-discovery judges, including Judge Shira Scheindlin from the Southern District of New York, Judge Paul Grimm from the District of Maryland and Judge John Facciola from the District of Columbia.

For practitioners seeking a shorter, more basic education, various professional organizations and service providers offer less intensive e-discovery certification courses. In order to meet the demand for a more verifiable level of education, many of these programs are now offering standardized certification exams or advanced courses.

The Association of Certified E-Discovery Specialists' (http://aceds.org), an independent membership association, now offers a multiple-choice exam that addresses 15 subject matter areas, including information management, ethics, collection, processing, document review and international discovery. Other professional organizations offering similar programs include the Organization of Legal Professionals (OLP) (www.theolp.org) and the Association of Litigation Support Professionals (ALSP) (www.alsponline.org). OLP now offers a Certified eDiscovery Professional (CeDP') certification exam that was developed over 18 months with the assistance of industry professionals, consultants and law professors. Although the ALSP certification exam is still in development, it is reported to cover a spectrum of topics beyond just e-discovery, and will purportedly “signify that an individual has demonstrated the knowledge and skills required to perform competently in today's complex litigation support environment.”

The Sedona Conference', a well-known thought leader in e-discovery, offers continuing legal education courses through its non-profit extension, The Sedona Conference Institute (TSCI) (www.thesedonaconference.org/tsci_html). Since 2006, TSCI has offered a series of CLE courses from locations around the U.S. The courses are offered in one or two-day advanced courses with material based upon the popular and heavily cited Working Group Series.

Conclusion

e-Discovery no doubt continues to challenge and frustrate the legal field. But, as this burgeoning area of law continues to evolve at a rapid rate, practitioners must evolve with it, adapting to address the increasing complexities and challenges associated with e-discovery. Whether through judicial efforts aimed at bridging the knowledge gap or through comprehensive e-discovery education designed to close it, practitioners everywhere must begin working to improve their own e-discovery education in order to best advocate for their clients.

On Dec. 1, 2006, the Federal Rules of Civil Procedure were amended to address the growing complexities raised by the increased proliferation of electronically stored information (ESI). Although these amendments provided a modicum of clarity, many problems persist and more continue to arise. There is little doubt that many of these problems stem from the fact that e-discovery is primarily driven by technology, which has a natural rate of change that far outpaces the notoriously conservative legal field ' a trend that some are trying to change.

While many scholars and practitioners continue to simply lament the widening gap between “ideal” e-discovery regulations and the painful realities of the current legal system, a growing minority from both the bench and bar are working hard to fill the void in a number of innovative ways.

Bridging the Gap

One of the latest efforts to bridge the gap comes from the Western District of Pennsylvania. On Nov. 16, 2010, the Board of Judges approved the establishment of the Electronic Discovery Special Masters (EDSM) program to assist litigants in certain cases where e-discovery issues arise. When necessary, the court or the parties can decide to appoint an EDSM from a special pool of candidates previously approved by the court.

To qualify as an EDSM, a candidate must meet specific criteria set by the court. The court's Alternate Dispute Resolution Implementation Committee, chaired by Judge Joy Flowers Conti, developed and approved the required selection criteria, which includes active bar admission, demonstrated litigation experience (particularly with e-discovery), demonstrated training and experience with computers and technology, and mediation training and experience.

If appointed, the court will establish the scope of the EDSM's duties which may include, but are not limited to, developing protocols for the preservation, retrieval or search of potentially relevant ESI, developing protective orders to address concerns regarding the protection of confidential information, monitoring discovery compliance and resolving discovery disputes. The EDSM may also present findings of fact or conclusions of law to the court; however these must be issued as a report and recommendation that will be subject to de novo review and opportunities for objection by the parties.

“The judges in the U.S. Court, Western District of Pennsylvania, have indicated that they expect the use of e-Discovery Special Masters to increase here and around the country over the years ahead,” says Richard Littieri, e-discovery counsel and approved EDSM for the district, further stating that he “suspects that other jurisdictions will observe their use here and, if warranted, create similar programs of their own.”

While it is still too soon to assess the effectiveness of the new EDSM program, another high profile, local e-discovery program reported significant success in the use of discovery liaisons. The Seventh Circuit Electronic Discovery Pilot Program (www.discoverypilot.com/about-us) noted in its May 2010 report on Phase One of the multi-phase program that the participating judges “overwhelmingly felt” the program had a positive effect on the test cases, and “[i]n particular, the judges felt that the involvement of e-discovery liaisons required by [the program] contributes to a more efficient discovery process.”

Courts are not the only actors pushing for e-discovery liaisons. In Alabama, two practitioners have co-founded the American College of e-Neutrals (ACESIN) (www.acesin.com) ' a new e-discovery liaison program with a novel twist. Recognizing that many of the e-discovery challenges stem from not only a lack of education, but a lack of cooperation as well, ACESIN believes “e-Mediations” are the key. Like a special master, certified e-Neutral Fellows possess special e-discovery expertise that allows them to assist parties in conducting an efficient and cost-effective e-discovery process. Unlike special masters, however, e-Neutral Fellows specifically provide this service from an alternative dispute resolution (ADR) standpoint. The process, referred to as “e-Mediation,” blends the skill set of an e-discovery liaison with that of a mediator in order to facilitate a cooperation-based e-discovery process. Prospective e-Neutrals can become an e-Neutral Fellow by applying to ACESIN. Those in need of additional training in order to meet the e-Neutral qualifications can also attend a training course periodically offered by the organization.

Efforts like the EDSM program and ACESIN e-Neutrals, though still unproven, are encouraging and their premise is supported by positive findings from the Seventh Circuit's Pilot Program. These programs reinforce the notion that significant portions of problems in the e-discovery process stem from a general lack of knowledge, which e-discovery liaisons can provide until the bench and bar at large catch up. In that same vein, however, the liaison programs evince a deeper, systemic problem that needs to be addressed ' the need for e-discovery education in the legal community.

Closing the Gap

The reality is that e-discovery is a rapidly growing body of law that demands its own attention. For obvious reasons, no attorney would represent a client in an area of law without possessing the requisite knowledge ' and the same logic applies to e-discovery. Yet, rising discovery costs and the number of cases involving sanctions have directly corresponded over the past three years. It is becoming increasingly clear that before real improvement in the e-discovery process can be made, law firms, individual litigators and even judges must begin to invest in themselves by embracing some form of e-discovery education.

Law schools are arguably in the best position to address the e-discovery knowledge gap, but most have been surprisingly reluctant to answer the call. In the meantime, innovators from every corner of the e-discovery world have begun providing opportunities for serious education designed to fit the needs of any practitioner.

One of the newest e-discovery education programs is the E-Discovery Team Training Program (https://www.e-discoveryteamtraining.com), founded by practitioner and e-discovery expert Ralph Losey. The program is comprised of 62 classes and is an extension of a course originally designed by Losey for law students at the University of Florida, but is now available online to any registered subscriber. The comprehensive, in-depth coursework takes anywhere from 50 to 400 hours to complete and is taught by Losey, with additional materials and commentary provided by industry experts and leading e-discovery judges, including Judge Shira Scheindlin from the Southern District of New York, Judge Paul Grimm from the District of Maryland and Judge John Facciola from the District of Columbia.

For practitioners seeking a shorter, more basic education, various professional organizations and service providers offer less intensive e-discovery certification courses. In order to meet the demand for a more verifiable level of education, many of these programs are now offering standardized certification exams or advanced courses.

The Association of Certified E-Discovery Specialists' (http://aceds.org), an independent membership association, now offers a multiple-choice exam that addresses 15 subject matter areas, including information management, ethics, collection, processing, document review and international discovery. Other professional organizations offering similar programs include the Organization of Legal Professionals (OLP) (www.theolp.org) and the Association of Litigation Support Professionals (ALSP) (www.alsponline.org). OLP now offers a Certified eDiscovery Professional (CeDP') certification exam that was developed over 18 months with the assistance of industry professionals, consultants and law professors. Although the ALSP certification exam is still in development, it is reported to cover a spectrum of topics beyond just e-discovery, and will purportedly “signify that an individual has demonstrated the knowledge and skills required to perform competently in today's complex litigation support environment.”

The Sedona Conference', a well-known thought leader in e-discovery, offers continuing legal education courses through its non-profit extension, The Sedona Conference Institute (TSCI) (www.thesedonaconference.org/tsci_html). Since 2006, TSCI has offered a series of CLE courses from locations around the U.S. The courses are offered in one or two-day advanced courses with material based upon the popular and heavily cited Working Group Series.

Conclusion

e-Discovery no doubt continues to challenge and frustrate the legal field. But, as this burgeoning area of law continues to evolve at a rapid rate, practitioners must evolve with it, adapting to address the increasing complexities and challenges associated with e-discovery. Whether through judicial efforts aimed at bridging the knowledge gap or through comprehensive e-discovery education designed to close it, practitioners everywhere must begin working to improve their own e-discovery education in order to best advocate for their clients.