Elephant in the Room

Elephant in the Room? That Would be the Lack of eDiscovery Competence: eDiscovery Trends

If we keep talking about the lack of eDiscovery competence as the “elephant in the room”, it won’t be the eDiscovery challenge we’re not talking enough anymore!

Yesterday’s article in Legaltech® News (Is Attorney E-Discovery Incompetence the Elephant in the Room?, written by Stephanie Wilkins and available here) points out several public eDiscovery failures, like:

Here’s another one from across the pond. Oh, and here’s a good one with a “smoking gun” Slack exchange! And that’s just in 2022!


As Stephanie points out in her article: “The past year has been a big one for very public e-discovery failures. While they may have been novelties for general headline news, these mistakes are nothing new to those who have been working in the e-discovery industry for any significant amount of time. But is attorney e-discovery incompetence looming to the point of being the industry’s elephant in the room?”

I would say that it’s not only the elephant in the room, but it’s also renting the room. With an option for a long-term lease! 😉

In her article, Stephanie gets terrific perspectives on the issue and what needs to be done from Kelly Twigger (principal at ESI Attorneys), Jason R. Baron (Professor of the Practice at University of Maryland, College of Information Studies), Maribel Rivera (VP, Strategy and Client Engagement at ACEDS), Mike Quartararo (President of ACEDS), Mary Mack (CEO of EDRM) and me.

Last month, eDiscovery Today’s 2023 State of the Industry Report, based on survey responses from more than 400 respondents, identified a lack of eDiscovery competence within legal as the biggest eDiscovery challenge not being talked about enough—for the third year in a row. 23.4% of respondents chose Lack of eDiscovery Competence as the top choice this year – the (potentially) good news is that was down 6.6% from last year. Progress? We’ll see.


Will we stop seeing eDiscovery disasters anytime soon? Of course not. And (sadly), through much of the case law we cover every year, they’re some of the best teachers of what NOT to do there is. Yet, we keep seeing the same mistakes over and over again.

What will change that? And what will it take for the lack of eDiscovery competence to stop being the elephant in the room? More articles like this that call attention to the problem is a good start! Thanks, Stephanie Wilkins! Check out her article here.

So, what do you think? Will there ever come a day where most of the legal industry is competent in eDiscovery best practices? 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 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.

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