Law schools need to ramp up e-discovery education

Andrew J. Peck, a U.S. magistrate judge in Southern District of New York, cautions that today's litigators need to "know how to deal with email and other forms of ESI [electronically stored information]." Moreover, Marla Bergman, vice president at Goldman Sachs, warns that e-discovery is a "core competency of the practice of law" and that "all lawyers, particularly litigators, need to understand" its fundamentals.

In the past, I have noted the failure of most law schools to provide the critical technical and legal e-discovery instruction necessary to prepare their students for entry into the real world of 21st century litigation. Recently, Arizona attorney, consultant and lecturer, Michael R. Arkfeld (eDiscovery Education Center), a leading national authority on the field of electronic discovery, has emphasized this.

Arkfeld asserts that, "not only is it an ethical requirement that one understands these different types of electronically stored information, the new legal principles that apply to the large volume and storage locations have seen several cases reversed for failure to lay a proper foundation for digital evidence and properly apply the rules to this new form. Unfortunately, most law schools, for various reasons, fail to provide this critical technical and legal information to their students."

Juliana Kenny, writing in Legaltech News, reports that UnitedLex has created a two-year "legal residency" program to train law school graduates so their "contemporary legal skills" can be improved in the long list of "legal technologies" that are missing from the "traditional law school curriculum," among which is e-discovery. Law schools affiliated with the unique UnitedLex program are Notre Dame Law School, Emory University School of Law, the University of Miami School of Law, the Ohio State University Moritz College of Law, the University of Southern California Gould School of Law, and Vanderbilt Law School. The goal of the UnitedLex approach is to benefit the legal profession and its clients as well as to make law graduates more marketable.

In addition, also writing in Legaltech News, Zach Warren has concentrated recently on what needs to be done to remedy the "lack of formal education" in this area. He has reported that the effort to provide law students with "more hands-on training" in legal technology preparing them for the "modern legal world," has been extended to setting up a fully operating law office by Integreon on the campus of Suffolk Law School. This has been dubbed the "Client Services Innovation Program" that provides work experience to students who labor on corporate client matters under the supervision of legal experts at Integreon. Among the areas of training will be "electronic discovery and managed document review." While there is criticism from some quarters, it seems the law school and the company have "similar ideas about educational approaches to legal technology" to deal with the practice of law, that has brought extensive changes concerning "what lawyers are expected to do today."

Warren also asks: "Why are law schools so e-discovery deficient, and who's picking up the slack?" First, citing an excess of "cybersecurity-specific undergraduate degrees," plus those at the graduate level, he quotes an industry source who alleges "not a single university in the entire world has an e-discovery bachelor's degree. Not one." Even though he concedes, "law schools are focusing on e-discovery more than ever before," the deficiency exists in spite of the huge growth of e-discovery in the last 10-plus years. This has left a dearth of expertise in the current generation of young lawyers who would be more than capable of taking up the slack but for the instructional failure of many law schools. He quotes Arkfeld as pointing out that law school instructors find e-discovery too complicated and outside the Socratic approach with which they are familiar and comfortable.

In presenting the various views of industry experts, Warren paints a sorry picture that includes a "huge disconnect" between the amount of risk and cost involved in e-discovery issues and the availability of industry training "at even the best law schools." There is a feeling that parents do not send their children to law school to "become e-discovery project managers," even though it is estimated to be a "$10 billion industry." As a result, the law schools are not going to rock the tuition boat navigated by the parents.

The remedy is to succeed in the hard task of "convincing the future attorneys that legal tech is worthwhile." This is a tough task when one looks at the educational background of most law students: Many come from "the liberal arts, the non-scientific disciplines," and may have an aversion to legal tech. Realization that this field is not based on a computer science degree can eliminate the traditional competition for jobs after graduating, and that technology "is driving change in the profession," could be the antidote. Again quoting Arkfeld, Warren submits this is a field for younger lawyers because the older ones are too "entrenched" and already "set in their ways."

Logikcull has entered into partnerships with several law schools utilizing the cloud in providing the schools with e-discovery education, online and in the classroom. Logikcull works with multiple law schools, including Georgetown, George Washington and Tulsa, providing "a set of best practices." Tulsa College of Law adjunct professor Amy Pahlka-Sellars, who specializes in discovery as senior counsel at the Williams Companies, expanded the school's e-discovery curriculum by designing and teaching a practicum course dealing with the real world of ESI. She has been generous in providing me with a copy of her course syllabus that emphasizes "critical tools for resolving litigation challenges." The course provides a good look at Tulsa's approach to the "current state of e-discovery education." It not only shows students how to understand the rules but also how they "literally frame the rest of the litigation."

The Tulsa course runs for 14 weeks and is limited to 16 students. Its objectives contemplate student mastering of skills necessary to manage e-discovery in complex commercial litigation. This requires assigned readings, instructor and vendor/provider guest lectures, and discussion/group problem-solving exercises. The content covers: litigation holds and the duty to preserve; communication with custodians and methods of preservation; discovery planning and conference preparation; collection of ESI and forensics; keyword searching mass volumes of ESI; document review, coding and workflow; TAR (technology assisted review) and defensible document review; validating discovery methods, or why lawyers need stats; budgeting complex discovery matters; the complexities of privilege review; ethical issues in e-discovery; and student presentations of project topics.

While each instructor may design and conduct a law school course on e-discovery differently, Pahlka-Sellars' first-year approach is an excellent example of how to deal with the task. It conveys to her students a clear picture of the field of e-discovery, and is designed to capture and maintain their interest throughout the class. Instructors such as Pahlka-Sellars and Arkfeld are the true pioneers in the field.

Practice tip: Law students, whether planning to be litigators or not, need to understand the career potential of the ever-changing brave new world of e-discovery that, while grounded on "legal tech," goes beyond a degree in computer science. This requires they attend law schools tuned in to the needs of this demanding new area of law practice.