Professionalism and eDiscovery: Going beyond ethical considerations

During the last few years, there has been much discussion, and even some interesting debates, about ethical eDiscovery issues.  Much focus has been on the topics of duties to preserve records, duties to disclose records, and the state Rules of Professional Conduct.  But, I believe it is not sufficient to consider only the ethical issues involved.  We must also focus on the professionalism of eDiscovery.  Some of these professionalism issues are raised in discovery generally, but others are unique to eDiscovery.

I believe it nearly universally true that the most professional and ethical lawyers are usually the best lawyers.  They have either long ago abandoned, or never acquired a taste for, unprofessional conduct.  They have mastered their craft and find no use for unprofessional behavior.  The same could be said for business leaders; if they are not professional, others would rather do a business deal with someone else.

Attorney Civility Rules
Some states have developed civility rules that are guidelines only.  These rules are not intended to be enforced against lawyer conduct the way that the Rules of Professional Conduct are enforced.  However, these are excellent guidelines for ensuring that lawyers maintain professionalism in eDiscovery.

Included in New York’s Standards of Civility rules are standards are obligations to be “courteous and civil in all professional dealings with other persons.”  This includes a requirement that lawyers “should act in a civil manner regardless of the ill feelings that their clients may have toward others” and “[l]awyers can disagree without being disagreeable.”
The New York Standards of Civility also state that “[a] lawyer should not use any aspect of the litigation process, including discovery and motion practice, as a means of harassment or for the purpose of unnecessarily prolonging or increasing litigation expenses.”  ESI requests are particularly prone to abuse in this area as it can be used to harass and increase litigation expenses.

Everything I Really Need to Know I Learned In Kindergarten.
In Robert Fulghum’s popular essay about what he learned in kindergarten, he discussed a few basic principles that both lawyers and businesses should abide by.  Included among those are basic professional principles like “share everything,” “play fair,” “don’t hit people,” “clean up your own mess,” “don’t take things that aren’t yours,” “say you’re sorry when you hurt somebody,” and “live a balanced life.”  A healthy dose of these basic ideas would serve the lawyer well in eDiscovery practice.  Although the pressing matter may seem most important at the time, conduct will create a reputation, and an unprofessional reputation is difficult to lose once it is gained. You can play fair while vigorously representing your client.


What Professionalism Should Govern eDiscovery Practice?
In eDiscovery circles, there is much discussion taking place about “proportionality.”  Essentially, this is an issue of reasonableness.  I believe reasonableness is also an issue of professionalism.  Recall that the scope of discovery is what is “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. Proc. 26(b)(1).  By narrowly tailoring requests to what is reasonable will enhance eDiscovery professionalism. eDiscovery costs should never be used as a way to bludgeon the opposing party into submission.   If ESI the scope of a request can be narrowed without harming a client’s case, then it should be narrowed.  The New York Rules of Civility state that “[a] lawyer should avoid discovery that is not necessary to obtain facts or perpetuate testimony or that is designed to place an undue burden or expense on a party.”


While many crack jokes about the professionalism and ethics of lawyers, most lawyers I know take both ethics and professionalism very seriously.  I believe that the best lawyers are not only ethical but highly professional as well.  Some clients act professionally as well, while others may will push for unprofessional practices.  It is the lawyer’s job to reign in his or her client.  While a lawyer must zealously advocate for a client, no case or client is ever worth squandering one’s reputation.  Never allow a client to cause you to do something unethical or unprofessional.


Lawyers involved in eDiscovery should strive for not only meeting the basic Rules of Professional Conduct but also the Rules of Civility.  By doing so, we serve the judicial system, our colleagues and our clients with integrity.

Labels: EDD, eDiscovery, electronic discovery, Electronically Stored Evidence, ESI, Law, lawyers, rules of civility

posted by Gene Petty @ 9:19 PM 0 Comments

eDiscovery Will Follow the Cloud Computing Boom

The National Inflation Association (NIA) reported this week that  after years of rumors about cloud computing going mainstream around the world, the cloud computing boom is now finally here. They predict that by the year 2013, cloud computing could become a bigger boom on Wall Street than the dot-com boom was in the year 2000. Cloud computing is currently a $74 billion industry that accounts for 3% of global IT spending, but in 2013 cloud computing is expected to become a $150 billion market.

The NAI further stated that 2012 will be remembered as the year in which cloud computing started to become widely adopted worldwide. Cloud computing is expected to create 14 million new jobs globally by year 2015. In the consumer space, Gartner is predicting that cloud services will be on 90% of personal consumer devices by year 2015 so that consumers can store, connect, stream, and synchronize content across multiple platforms at different locations.

Industry analyst are heralding the explosion in the Cloud computing market as great news for the Cloud Service Providers (CSP).  According to a forecast from independent technology analyst firm Ovum, the global public cloud services market will more than triple in size over the next five years to reach revenue of $66 billion in 2016 and the market will see a compound annual growth rate (CAGR) of 29.4 percent from the $18 billion it reached at the end of 2011.  Ovum goes on to report that in terms of the cloud computing service lines, Software-as-a-Service (SaaS) will shrink from 87 percent of the market in 2011 to 62 percent in 2016 due to the rise of infrastructure as a service (IaaS) and platform as a service (PaaS), which will grow from 9 percent and 5 percent, respectively, to 23 percent and 16 percent by the end of the forecast period.

And, there are numerous other studies by most of the major international industry analysts that predict a dramatic increase in the size of just about everything having to do with Cloud computing.

However, it is my impression that the inevitable and potentially dramatic increase in the demand for eDiscovery and Information Governance due to this explosion of the Cloud computing market, is flying under the radar of most analysts.  eDiscovery and Information Governance professionals know full well that there is a linear and possibly an expontial relationship between the volume of Electronically Stored Information (ESI) and the demands and cost of identification, collection, analysis, processing and production of that ESI.

In 2011, Gartner predicted that the eDiscovery market would reach $1.5 Billion in revenue by 2013.  And, depending upon which analyst you follow (and believe), the size of the Information Governance market is anywhere from 2X to 10X the size of the eDiscovery market.  I believe that all of these forecasts are extremely low.

Further, a recent study by eDSG on "How Cloud Service Providers Support eDiscovery and Information Governance" as reported on this blog on March 7, 2012, indicated that 95% of  the Cloud Service Providers and 98% of the general counsel from the global 2000 (based on participation in the survey) did not have a plan for responding to eDiscovery and Information Governance requests for ESI residing in CSP facilities.

In summary, my prediction is that the explosion in the size of the Cloud computing market as reported by the National Inflation Association is really good news for any of the technology and service providers, along with their investors, that are planning to support eDiscovery and Information Governance in the Cloud.  As the name of this blog implies, the eDiscovery paradigm shift is underway and the demand of Cloud computing is only going to make that shift and the associated size of the market even bigger.

The full text of the press release by the National Inflation Association: http://www.marketwatch.com/story/cloud-computing-is-new-wall-street-boom-says-nia-2012-03-20

Labels: Cloud, Cloud Computing, Cloud Service Providers, CSP, Early Case Assessment, eDiscovery, Information Governance, Law, Legal, Legal Technology, Litigation

posted by Charles Skamser @ 8:33 AM 0 Comments