Searching for Justice: An Immodest Proposal

By Julia Brickell
Special to the EDD Update blog

We jump through hoops to do discovery in the United States. Unlike the more restrained approach of, say, the U.K., we bite the bullet, pay the price, and strive to meet our obligations in response to any production request. In the electronic age, this has become a practice of some consequence, perhaps even of injustice, but we seem wed to it.

In the face of staggering data volume unimaginable only a few years ago, we take steps to adjust. We modify rules to clarify intent, encourage collaboration among adversaries, provide clawbacks for inadvertent mishaps, develop more nuanced search techniques, and gather together regularly to discuss the myriad challenges that ones and zeroes have thrust in our way. We look to technology to solve the problems it has created, feeding a thriving industry of technological tools and services which create yet more opportunities for technology to address.

In short, we have been very busy trying to make the search for discoverable information both manageable and cost-effective. Yet the GNP of a small country pales in comparison to what some American corporations spend on e-discovery in a year. We can only suppose that if we’re paying such a high price to give each other information, there must be a very good reason and it must be related, after all, to a just pursuit of the facts.

If there is not a good reason for this costly and often burdensome exercise, then we should reexamine our thinking on the matter with considerable urgency: we are guilty of wasting time, money, and doing nothing to enhance the search for justice. But, since we are behaving as though this is an undertaking worthy of considerable effort and expense, then presumably we should want to do it well.

So, are we doing it well -- or at least reasonably well? Can we know?

The answer to the latter question is a resounding yes, we can know. This is absolutely a measurable activity and we can know, at the very least, how effective and precise our search for discoverable material is. The answer to the former -- are we doing it well? -- is a resounding no. We’re not doing it very well at all. We know this because the methods we commonly use to search for information have been studied and measured by various independent bodies, including one that has fashioned a rigorous study specifically to test search in e-discovery (NIST’s Text Retrieval Conference Legal Track, or TREC).

So, we know with absolute certainty that some search methods are far superior to others while usually costing less, when all is said and done. And yet, oddly, we plod along, asserting that our usual approach is reasonable, as though we had no choice. Where is the disconnect?

Those of us with a less naïve sensibility (or some skin in the game) may have thoughts about why we cast a blind eye to the facts before us or feel no discomfort in just begging the question. By silent consensus we perpetuate the status quo.

So, the immodest proposal? Let’s honestly ask ourselves why, as officers of the court, if we are in pursuit of a just result, we would choose to do something to a lesser standard than to a better one? If we come up with an answer other than "we shouldn't," then we have indeed lost our way.

Julia Brickell is executive managing director and general counsel of H5. She serves on the faculty of Columbia University's Executive Master of Science in Technology Management program. Prior to joining H5, Brickell was associate general counsel of Altria Client Services, previously served as vice president and deputy general counsel of Philip Morris USA, and was a former litigator at Davis Polk & Wardwell.

Comments

[Craig Ball]

Well said. Thanks.

A smarter approach to search is an important step on the path we must follow to eliminate the negligent waste seen in e-discovery; but it's only a step, akin to claiming we could eliminate our dependency on foreign oil by equipping every car with a GPS system to minimize wrong turns.

I take your point to be that lawyers haphazardly seine with artless keywords, hauling in vast numbers of largely irrelevant material, then tasking legions charging by the hour to plow through the piles.

Undoubtedly, the cost could be slashed and the results improved if lawyers were better equipped to plan e-discovery, frame searches and employ better tools and techniques to collect, cull, process, review, assess and produce ESI. In the TREC Legal effort, your company handily demonstrated the huge positive impact of just one important tweak in the process; that is, the improved precision achieved by spending more time talking with subject matter experts about what constitutes a responsive document.

It's not hard to make e-discovery work at a reasonable cost, anymore than it's hard to play the piano. There aren't any shortcuts to playing the piano. It just something you have to study, learn and practice. And you can't call yourself a pianist if you can't play.

You urge that we, "...honestly ask ourselves why, as officers of the court, if we are in pursuit of a just result, we would choose to do something to a lesser standard than to a better one?"

Assuming a just result is what drives us--and some might suggest other motivations--lawyers apply an e-discovery standard arrogantly measured solely by their own shortcomings. It's a cancerous credo that might be summed up as, "If I don't already know how to do it, it's not a skill anyone should need, and I should be relieved of any duty to know." Lawyers don't simply choose a lesser standard in e-discovery, they're downright smug about it!

Information is a lawyer's lifeblood, and all of us who today till and toil the vineyards of justice must understand how information is born, lives, behaves and dies. Until we accept that we are not qualified to do our jobs without a significant investment to acquire real and substantial ESI skills, we are just dressing up as professionals and selling our clients, courts and country short.

[Regina Mullen]

I agree with both of you, of course. BUT, I strongly disagree that the average lawyer would become more competent if s/he would only put in more time or try harder. The fact is that very few lawyers are good at the skills that e-discovery requires by training and/or temperament. And, there's no reason they should aspire to be. What they should aspire to have is knowledge about the ecosystem, so that they can get their piece of the puzzle done well, trusting those on their team to fill in their part. Efficiency is not a solo act and measuring it as a function of price is just silly. Quality results can be achieved by the average TEAM, if they take an iterative approach supportive of success, rather than one premised upon blame and failure. It's simply wrong for litigation counsel to appear before a judge and blame (for example) his review team! Strong teams don't have prima donnas,--and when lawyers learn to operate within a well-structured team, judges won't feel compelled to direct so much of the adversarial process. Bottom line: we need new ways of looking at the litigation ecosystem. That's the work I'm trying to do with Dialexica and I encourage anyone interested to do the same and then connect around true innovation.