eDiscovery Daily Blog

• January 5, 2017

Last year, I led off the year with a post declaring that the age of eDiscovery automation is upon us (even with an exclamation point for emphasis!).  Was that the case?

Well, in the past year (or so), we’ve seen an even more broad acceptance of Technology Assisted Review (TAR) with the first UK case law to approve the use of TAR.  Sure, there is still some dispute about the technology and acceptance of TAR (and sometimes how it is presented), and the machine learning technology at the core of TAR may be at the “Peak of Inflated Expectations”, but it’s clear that TAR is here to stay, even as the technology and approaches around it evolve.

With regard to SaaS automation technology, we’ve seen significant investment by venture capital firms in providers like Logikcull and Everlaw and we’ve also seen “big boys” like kCura, Ipro and Thomson Reuters make significant SaaS and automation announcements.  Not to mention the emergence of other SaaS automation providers like CloudNine (you knew I’d mention us in there somewhere, right?).  With the continued evolution of TAR technology (and acceptance of that technology) and the emergence of SaaS automation alternatives, it’s clear that automation is already changing the eDiscovery landscape in a big way.  And, that doesn’t even consider the growing impact of automated data discovery prior to litigation, which is another trend that I think you’ll see have a significant impact on the market in the coming years.  So, I was right.  ;o)

However, for automation technology to really have an impact, the users of that technology need to really understand that technology and its benefits and we’ve discussed numerous times on this blog how attorneys are lacking in their understanding of technology.  This thought has been reinforced by many of the thought leaders we’ve interviewed over the years who have discussed how disappointed they are with the rate of adoption of technology by the legal industry.  In particular, Craig Ball likened it to the melting of the glaciers, then observed that, because of global warming, the glaciers might be melting faster than attorney adoption of technology.  Will lawyers ever “get” the technology?

Maybe they’re finally being forced to do so.

In 2012, the American Bar Association formally approved a change to Model Rule of Professional Conduct 1.1 to clarify that attorneys not only have a duty to be competent in practice of law, but also in technology with Comment 8 to the rule which reads: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” {emphasis added}

Then, in 2015, California adopted Formal Opinion 2015-193, which stated that “[a]ttorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery”, noting that an attorney lacking the required e-discovery competence must either learn it, consult with someone who knows it or decline the client representation.

Now, over half of the states – at least 26 in all – have adopted some requirement (or at least guidance) for technical competence by attorneys.  And, we now have our first state – Florida – which late last year actually mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year.  Will that start a new trend of states requiring technology CLE?  We’ll see.

Regardless, it’s clear that the trend is toward more and more states expecting licensed attorneys to have some level of technology competence.  As my boss likes to say, “you can get on the bus, or get run over by the bus”.  (Yep, I know I used that statement last year when discussing adoption of automation technology – I guess I need to get some new material…)

With that in mind, it’s important to stay on top of best practices and trends regarding technology in the legal industry to meet your state’s technology competence requirement.  Your state may not currently have such a requirement, but (based on recent trends), it could be coming.  One way to do so is via reading, so if you’re a regular reader of our blog, congratulations!  You’re already doing something to boost your technology competence level by learning about eDiscovery best practices, trends and key case law decisions.

Another way is through training and CLE events, either in-person or via webinar, where you can learn about technology and possibly satisfy your CLE requirements (even if you don’t live in Florida).

To help in that endeavor, CloudNine is sponsoring a webcast on Wednesday, January 25th at noon CT (1pm ET, 10am PT) titled What Every Attorney Should Know About eDiscovery in 2017 via the BrightTALK network.  This is a one-hour session that Karen DeSouza (Director of Review Services here at CloudNine) and I have conducted for the past couple of years for hundreds of legal professionals for CLE credit in Texas.  It’s a good fundamental session that covers key terms, the eDiscovery life cycle, rules, duties, and case law which can give you tools and resources necessary to efficiently and effectively meet challenging discovery obligations that you’ll face this year.

To sign up for the webcast, click here.

I should note that we are currently working on CLE accreditation for the webcast in at least a couple of states and I will provide updates on this blog as we obtain approval for each state.  Regardless, it’s a terrific overview of eDiscovery concepts and I hope you’ll join us.

So, what do you think?  Do you think we’re finally entering an age of technical competence for attorneys?  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 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.