Two years ago, Patrick McLaughlin used a Dictaphone when working on pleadings for his criminal cases. But times have changed for the assistant U.S. attorney, who has graduated from using the recording device to dictating to his legal secretary.
“I never became comfortable with the idea of sitting down and typing out documents,” said McLaughlin, 58, who prosecutes drug traffickers and money launderers for the U.S. Attorney’s Office.
He’s one of many trial lawyers who started practicing before the Internet came into common use. They are now facing a changing legal landscape as technology takes a larger place in the world of law, specifically in the area of electronic discovery.
In the legal sphere, e-mails, instant messages and other electronically stored information are being used as evidence in any kind of dispute, from civil litigation to divorce cases. A cottage industry of lawyers and legal assistants who specialize in mining nuggets from the mountain of electronic documents is in full blossom.
According to a survey by consulting firm Socha-Gelbmann, the e-discovery industry consultants, software, temps hit $2.7 billion in 2007, up 43 percent from 2006.
Industry insiders said lawyers, many of whom are notorious Luddites, are now being forced to understand the features of technology as e-discovery plays a larger role even in routine cases.
“For us lawyers who have been practicing for 10, 15 or 20 years, it is not something that the bar spent a lot of time on training,” said Michael Zweiback, a litigator in the Los Angeles office of Alston & Bird LLP. “You have to get up to speed on your own, and learn the technology and understand how the technology works in order to figure out how to get what you want.”
There are federal rules that deal specifically with e-discovery. The U.S. federal judiciary has mandated attorneys start the electronic discovery process early in litigation and share the retrieval methods with opposing counsel.
Bring on specialists
In response to the new demands of extensive e-discovery, Los Angeles-based alternative dispute resolution provider Alternative Resolution Centers LLC recently brought in two experts to help lawyers and their clients navigate the evolving e-discovery landscape. The e-discovery experts, Daniel Garrie and Liane Komagome, are also principals at consulting firm CRA International Inc.
“People used to think e-discovery was for first-year lawyers,” Garrie said. “But now it is a lot more complicated and critical to litigation.”
Local litigators agree. During their careers, Zweiback and Los Angeles Steptoe & Johnson LLP partner Mark Neubauer said that they have seen a transformation in the way cases are tried.
“It is changing the way litigation is done,” Neubauer said. “It used to be in a dispute that you would get a contract, several pieces of correspondence and maybe a few handwritten notes.”
Now, the process looks more like this: The main litigators working on a case direct outside e-discovery experts to search for key words or phrases when they are retrieving information from electronic data, typically e-mails and instant messages.
Since the information found during e-discovery can make or break a case, attorneys said it is important for lawyers to understand the technology being reviewed in order to recover crucial information for a case.
“You can hire experts, but sometimes experts are only as good as the questions that are asked,” Zweiback said. “And if you don’t know the right questions to ask, you are at a disadvantage.”
While some lawyers are slowly entering the digital era, not all are at sea when it comes to technology.
Pamela Johnston, a litigator in the Los Angeles office of Foley & Lardner LLP, said just because veteran lawyers were not weaned on technology like their younger colleagues, it doesn’t mean they can no longer be effective.
“There are still lots of older lawyers who may not be technologically embracing e-mail or technological assistance in litigation,” Johnston said, “but that doesn’t mean they don’t understand the issues for production and how to help their client.”
In order to address the massive e-discovery their clients are faced with during litigation, local and national firms have created e-discovery practice groups that deal exclusively with related issues. Los Angeles-based firms O’Melveny & Myers LLP and Jeffer Mangels Butler & Marmaro LLP have departments dedicated to helping their clients navigate e-discovery.
Dan Sedor, co-chair of Jeffer Mangels’ discovery technology group, said that the group was launched in January 2006 after realizing the firm’s clients were increasingly required to comb through electronic data during ongoing litigation.
“People who are knowledgeable about technology and the industry that provides e-discovery services are going to have an edge,” Sedor said.
Amy Newman, president of ARC, said she often deals with lawyers who have yet to get up to speed with the technology used by their corporate clients.
“There is a large population in the legal world that is just not in sync with the higher levels of technology,” Newman said. “There is a lot of confusion and people at small- and medium-sized firms aren’t necessarily prepared.”
