One of the things I love most about this job is the ability to conduct interviews with key thought leaders in our industry and get their thoughts and observations regarding trends and best practices – then (of course) sharing them with you all. My latest interview was with a leading expert on eDiscovery who has been setting the standard for it since before it was even called “eDiscovery”!
As Vice President and General Counsel for HaystackID, Ashish Prasad is widely regarded as among the leading experts on discovery in the United States. He has served, among other things, as Litigation Partner, Founder, and Chair of the Mayer Brown LLP Electronic Discovery and Records Management Group, Executive Editor of The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (2004), Co-Editor in Chief of the Practicing Law Institute treatise Electronic Discovery Deskbook: Law and Practice (2009), Adjunct Professor of Law at Northwestern University Law School, and Board Member and Executive Editor of the Distance Learning Program at the Electronic Discovery Institute.
Ashish has authored dozens of articles and given hundreds of continuing legal education seminars on topics of electronic discovery before judges, practicing lawyers, and industry groups in the United States, Europe, and Asia. Ashish is a graduate of the University of Chicago Law School, where he was a member of the Law Review, and the University of Michigan, where he graduated with High Honors and High Distinction.
Ashish, you founded the Electronic Discovery and Records Management Practice at Mayer Brown way back in 2003 when most law firms didn’t even know what “eDiscovery” was. What’s your observation on how the state of lawyer competence in eDiscovery has evolved over the years and where it stands today?
Lawyer competence has grown tremendously with respect to eDiscovery over the past 20 years that I have been focused on eDiscovery. There have been tremendous efforts to teach federal and state practitioners about the basics of eDiscovery, and what they need to do in order to manage eDiscovery appropriately for the benefit of their clients. Now, most of the litigators that I deal with, especially at the larger firms, understand the basics of eDiscovery, and have had eDiscovery projects in the past that have allowed them to become knowledgeable about best practices.
That being said, I think we have a long way left to go in terms of education of practitioners on eDiscovery. We still see a lot of practitioners not being as knowledgeable as they could be on the tools and processes available to achieve efficiencies and cost reductions for their clients. For example, we see less use of analytics and culling techniques than we had expected to see when these techniques became more prevalent about five years ago. We also see ineffective processes in the document review area that have been addressed by larger companies and larger law firms over the past five years.
OK, so we’ve talked about lawyer competence. How do you feel that the courts have evolved to understand technology, and do you think judges generally have the technical knowledge to actually rule on technology issues?
I have been impressed with how far the courts have come in terms of their technology understanding. The Federal Judicial Center and other organizations have been focused on judicial training on eDiscovery for many years, and that has had great effects. For example, The Federal Judges’ Guide to Discovery, which was published by the Electronic Discovery Institute and of which I am an Editor, covers all the basic aspects of eDiscovery that a federal or state judge would need to know. Since the federal eDiscovery rules’ amendments of 2006 and 2015, federal judges have been required to preside over the eDiscovery processes in their litigation matters, which has caused them to become pretty knowledgeable about the eDiscovery process.
Now, if you ask me whether they are, as a group, knowledgeable of all the ins and outs of technology with respect to eDiscovery, I would say that the answer to that question would be no. But I would also say that they do not need to know all the ins and outs of technology in order to preside over their cases. The parties and their counsel are obligated to teach the basics of the technology to the judges if and when that is required in specific matters, and in the vast majority of cases, a deep dive into the eDiscovery technology will not be required or desirable. What is required of the judges is enough technology knowledge to resolve the discovery dispute in front of them, and in my experience, the judges have that, and they use it productively and effectively in resolving disputes.
Since you noted that lawyers and courts both have some work to do, what would you recommend to both lawyers and judges to boost their competence in eDiscovery and their understanding of technology?
I would point lawyers and judges to a number of treatises that are excellent in this area. The first is the Electronic Discovery Deskbook published by the Practising Law Institute. The second is The Federal Judges’ Guide to Discovery that was published by the Electronic Discovery Institute. The third is The Sedona Principles published by The Sedona Conference®. These three treatises, taken together, give an excellent overview and deep dive into eDiscovery, which includes not just the legal process of eDiscovery, but also the business process and the technology process of eDiscovery. Each of these three processes of eDiscovery is very important.
The other step that I would recommend to lawyers and judges is that they review the resource sections of the websites of those law firms that have formalized eDiscovery practices, and the resource sections of the websites of the larger service providers in the eDiscovery industry. Those resource sections are very valuable, and they include case law updates, technology updates and best practices updates. In terms of organizations that lawyers and judges can get involved with for eDiscovery education, especially for the corporate community, I would recommend the Electronic Discovery Institute (EDI). The EDI has in-person programs as well as online programs that are very valuable. Other organizations are also doing great work in this area, including The Sedona Conference and the Practising Law Institute.
We’re just getting started! Part Two of my interview with Ashish Prasad will be published on Wednesday.
So, what do you think? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.