eDiscovery Daily Blog

• May 22, 2019

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Thursday and part three was Monday, here is the fourth part.

Lack of Competence Challenges

The next most popular choice for plaintiff eDiscovery pain points was lack of competence. This point was reflected in several different ways. Craig Ball stated it most directly when he called it “the big one” and noted the failings in the Plaintiffs’ bar by saying:

“Plaintiffs’ lawyers have been slow to integrate eDiscovery into their practices, so few plaintiffs’ lawyers are conversant in the argot and processes of eDiscovery.  This isn’t a slam.  Defense lawyers can call on resources unavailable to plaintiffs’ lawyers.  A defense firm will have an eDiscovery specialist or practice group to guide them and may be able to draw on resources supplied by an insurance carrier or the client’s IT staff and the client’s in-house eDiscovery workflows, tools and teams.  How many plaintiffs’ lawyers can responsibly delegate eDiscovery to their clients?  How many have eDiscovery specialists as full-time staffers?”

But clearly, he felt the Plaintiffs’ bar wasn’t picking up the slack in those shortcomings by becoming ESI proficient themselves. As he put it, “The answers are out there; but they’re not going to find the lawyers.  The lawyers have to look for them.”

Bob Eisenberg also felt it was an often-overlooked problem with the defense side, calling it a “… lack of eDiscovery expertise and interest …”

The answer tied most closely to competence was lack of tools and/or training.  Bob linked it to his answer on competence, saying that the lack of competence:

“… results, in many instances, in a failure to deploy, on an in house basis (as opposed to transactionally), necessary eDiscovery technical tools and over-reliance on outside expertise which can result in unnecessarily costly services when eDiscovery is required and problems arising from little or no in house expertise to oversee and assure both the validity and cost-efficiency of eDiscovery.”

Craig was quite specific as to the reason this was an issue when he termed it this way:

“Virtually no one offers eDiscovery training geared to the scale, needs and resources of plaintiffs’ lawyers. The Willie Sutton Rule applies.  Service providers, CLE providers, software developers, all tend to go where they think the money is, being the big firms and big corporations.  Providers shy away from plaintiffs’ lawyers out of fear of being blackballed by corporate clients and, understandably, because plaintiffs’ lawyers need more handholding and support.  Too, the collection, processing and review tools on the market are frequently priced out-of-reach to the solo and small firm practitioner and geared to the needs of producing parties.  Without tools and foundational training to explore ESI, plaintiffs’ lawyers can’t get closer to competence.”

The issue of protocols did have several mentions and was specifically called out by Jean and Drew.  Jean felt that too often protocols were misused, often being conflated with confidentiality or protective orders. Drew went even further and said that agreeing on an exchange protocol was too often “…like birthing a baby..”.

Ariana referenced the issue when she noted as her second issue “Data dumps in various formats without explanation or corresponding load files, select metadata, OCR, etc.”

For specific issues by an expert, Bob referred to a lack of understanding of their own internal IG systems by many defense counsel. Craig addressed what he called “shortsightedness” by Plaintiffs, which he described as their strong belief that “… if only they can get to the defendants’ ‘documents,’ they can make their case and prevail.” But as he goes on to say, “It’s not documents so much anymore; it’s data”, an observation clearly related to the competence issue.

Finally, Ariana bemoaned: “Inexperienced lawyers who choose not to reach out to those who have the experience, acumen, and wherewithal to go toe to toe with the opponent (especially if the opponent is sophisticated and/or is using a reliable service provider) will find themselves at a serious disadvantage.”

We’ll publish Part 5 – Conclusions – on Friday.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine 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 Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.