Why not just read a few eDiscovery cases?

An hour or so after I posted my blog entry eDiscovery certification bars new entrants arguing  against the apparatus of exams and certificates for in-house staff, a new post appears headed The Critical Need for eDiscovery Certification followed closely by another post apparently based on the same press release. It is not a riposte to mine but a fortunate coincidence – I stress the word “fortunate” because, as I acknowledge in my article, this is definitely an area for debate. Chere Estrin, the author of the article, refers (as I did last week) to Socha-Gelbmann’s observations on the shortage of expertise in the market. All the more reason, says I, for opening the doors wide, leaving it to employers to choose the right people, and to direct them to external resources where they can improve their skills.

Chere Estrin takes the opposite view and points us to the Organisation of Legal Professionals which “has been formed for the purpose of providing an exacting and tough certification exam to establish core competencies”. Some of the names on the list of governors of the OLP are people I know or know of, are experts worth listening to, and are interested in the future of the profession.

My case was based not so much on my knowledge of practice in American law firms as on first principles applicable everywhere. I would be delighted if the OLP manages to increase practical knowledge and create springboards, as it hopes, without simultaneously erecting the barriers which I fear.

I have to say, after a day spent simply going round a range of very good US web resources on ediscovery, I reckon that the most relevant “core competency” is the ability to read. At the moment of writing, for example, the highest listed case summaries on the K & L Gates website include  Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009) and Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009). It does not really matter if you miss those two, because by the end of September there will be at least two more with the same emphasis on what are basic  ediscovery obligations. Anyone who has read any prior ediscovery cases, if given a summary of the basic facts of these two, could predict their outcome as surely as they could predict the outcome if they watched two speeding trains heading towards each other along the same track.

An English lawyer would gape in wonder at the resources devoted to the arguments about discovery in these cases. That does not make us better or worse, just different. It is unlikely, in fact, that either of them would have been reported at all, even if their outcomes had matched those of the US cases – that is our defect, not yours, since we could do with wider reporting of results like this. The fact is, however, that competence cases of this kind are regularly reported in the US and are widely commented on. Whether you agree with my non-interventionist position in the certification argument or believe that “an exacting and tough certification exam” is what is required, you cannot argue with the proposition that an hour a week spent reading some of the many eDiscovery websites and blogs would at least tip the lawyer off as to the most obvious traps to avoid.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, Courts, Discovery, eDiscovery, FRCP. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s