Kids Say The Darndest Things
In the 50’ and 60’s, one of the staples of daytime television was Art Linkletter’s House Party. For its time, it was a cutting edge, daytime variety show. One of the most famous recurring segments was “Kids Say the Darndest Things”. Art would ask the children innocuous questions and just stand back and wait for the children to answer - usually to hilarious and unexpected results. Needless to say, a child’s view of the world is somewhat different than that of a grown up.
Want to see how different? Take a look at this YouTube video. In it, the baby is unable to understand why the pictures in the magazine will not pinch, zoom or scroll! It’s a prescient illustration of how children will interact with the world around them in the future.
Wait, that’s not the future - it’s how they interact with the world today. Oh, and it’s how we do too.
Take a look at the Pew Research Center’s State of the News Media 2015. In today’s world, the information that we receive is presented, consumed and processed digitally. We get it through mobile devices, tablets, and personal computers. While television continues to hold its own, print continues to decline.
What does all of this have to do with eDiscovery? Simple: It’s not just how we interact with the world for entertainment; it’s how we interact with the world, period.
In business, we communicate with one another through emails, text messages and posts to social networking sites. Voicemails are stored as audio files on our servers. Call center software records, converts to text and automatically keyword searches our phone traffic. Even our business documents are moving out of filing cabinets and our “My Documents” folder on our desktop. Now, they are born, live, and die in the cloud.
This has many companies asking some very pointed questions:
- “How much money are we wasting by converting everything to static, low information, TIFF, PDF or paper?”
- “How much money are we wasting by doing our document reviews the old-fashioned way simply because we’re comfortable with it?”
- “If the VAST majority of information that we deal with is digital in nature, why in the world would I hire an attorney to represent me if he or she doesn’t understand ESI? Doesn’t my attorney have some kind of ethical obligation to understand this stuff?”
Bingo. Yes, they do. The American Bar Association Model Rule 1.1 does a good job of laying the groundwork. Most specifically, comment 8 (emphasis mine) states:
“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.”
The California Bar Proposed Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests) takes it one step further (emphasis mine):
“An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney 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, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e‑discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”
Hiring someone else does not give attorneys a free pass though; the ABA is clear on this. Even when hiring expert help, the attorney is still responsible for the proper supervision of the review. This means that consultants, ESI, experts and eDiscovery service providers must be crystal clear with the attorneys that they work with where the limitations of responsibility lie. The technologies employed to assist in the review of ESI are tools. The workflows and other processes utilized are just that: workflows and processes. They do not, and they must not, rise to the level of the Unauthorized Practice of Law.
No one is saying that all attorneys now have to have degrees in computer science. What they are saying is that if you already have the knowledge and skill to deal with ESI, keep it up and stay current. On the other hand, if you don’t have the skill, you need to coordinate with or hire someone who does.
I leave you with a couple of my favorite “Lawyers Say the Darndest Things” from the Book “Disorder in the Court”:
ATTORNEY: What was the first thing your husband said to you that morning?
WITNESS: He said, 'Where are you Cathy.'
ATTORNEY: And why did that upset you?
WITNESS: My name is Susan!
ATTORNEY: Now doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until the next morning?
WITNESS: Did you actually pass the bar exam?
ATTORNEY: The youngest son, the twenty-year-old, how old is he?
WITNESS: Uh, he's twenty.
ATTORNEY: How was your first marriage terminated?
WITNESS: By death.
ATTORNEY: And by whose death was it terminated?
WITNESS: Now whose death do you suppose terminated our marriage?
And finally, my favorite:
ATTORNEY: Doctor, before you stepped in to perform the autopsy, did you check for a pulse?
ATTORNEY: Did you check for blood pressure?
ATTORNEY: Did you check for breathing?
ATTORNEY: So, then it is possible that the patient was alive when you began your autopsy?
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
ATTORNEY: I see, but could the patient have still been alive, nevertheless?
WITNESS: Yes, it is possible that he could have been alive and practicing law.
Until next time,