Buffalo Wings and Toasted Ravioli

[Disclaimer: This post represents my sketchy paraphrase and comments on the content of the discussion. Any errors or omissions are my fault.]

Facing the Cliff: Can Proportionality Avert the eDiscovery Crisis?
Proportionality has been touted by industry cognoscenti as the bridge over the chasm of troubling eDiscovery disputes. Despite the hype, many doubt that proportionality can prevent courts, clients or counsel from plummeting into the abyss of spiraling costs and lengthy delays that often characterize discovery. For example:

Can predictive coding facilitate proportional discovery when lawyers are unwilling to share their training set of documents?
Should proportionality standards apply to the preservation of ESI to help address the high costs of retaining so much data?
Will the proportionality rule ever be used to rein in lawyers and judges that have distorted the standard of discovery from reasonableness to perfection?
Please join us as Philip Favro, Discovery Counsel, Symantec Corp. leads a distinguished panel of experts in a lively debate on these issues

Moderator:

Philip Favro,
Discovery Counsel,
Symantec Corp
Panelists:

Shawn Cheadle, Esq.,
General Counsel, Military Space,
Lockheed Martin Space Systems Co.

Hon. Frank Maas,
United States Magistrate Judge,
Southern District of New York

Ariana J. Tadler, Esq.,
Partner,
Milberg LLP

About half of the panels at Legaltech NY 2013 deal with e-discovery. Hardly any law schools offer courses in the subject. One of the things that makes it both fascinating and frustrating to teach is how little authority there is. Building on the recent amendments to the Federal Rules of Civil Procedure, almost all of the cases are federal district court opinions and, increasingly, state courts as well. The leading legal authorities on e-discovery are a handful of federal judges in the Southern District of New York–and The Sedona Conference, a private, non-profit organization of lawyers, judges, and technologists who have promulgated a series of influential papers, documents, and standards.

One of the areas of debate is over the importance of “proportionality.” FRCP 26(b)(2)(c) provides:

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that…

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

The debate focuses on how heavily to weigh proportionality. Some cases emphasize it, but others ignore it. Utah has recently amended its rules to make proportionality “the hallmark of discovery.” Does Rule 26 need to be amended to better and more explicitly emphasize proportionality?

Defense counsel (Cheadle) tend to like to emphasize proportionality; plaintiffs (Tadler), not so much. Judge Maas is skeptical that adding the word “proportional” to the rule would add much difference; judges tend to focus on what seems fair to the clients under the circumstances.

“Does the widespread adoption of predictive coding depend on proportionality?” Traditional lawyers-read-all-the-documents review is expensive, error-prone, and time consuming. Predictive coding promises to reduce or eliminate the need for manual review; the question is whether lawyers and judges will trust it.

[Disclaimer: I am attending Legaltech thanks to a free blogger's pass, so read skeptically. All opinions are my own because nobody else would want them anyway.]

From Legal Ethics Forum:

Citibank advisory for 2013 suggests that big law economics are still under great pressure

The report is available below. Intro graf:

For the legal industry, the results in 2012, another turbulent year, were largely a repeat of trends that emerged over the prior three years. In fact, we think it is time to let go of any lingering notion that the industry will revert to the boom years before the Great Recession anytime soon. With profit growth and other financial indices reaching lower setpoints in the past four years, we anticipate that the current state of the industry will remain the norm for the foreseeable future. With this view in mind, we are taking a step away from our typical year-on-year analysis. Part I of this Client Advisory contrasts the four years prior to the Great Recession and the four years after, to discern the hard lessons learned by law firm leaders. Part II discusses how to apply those lessons going forward, using today’s logic.

Download CitiHildebrandt2013ClientAdvisory

On the other hand, one of my faculty colleagues had lunch with a big farm partner who said they’re doing fine, so I guess we can all breathe easy.

A couple of days ago I posted an excerpt from Carolyn Elefant’s cri de couer about young lawyers’ lack of ideas for the use of technology in marketing their practice. 

Some of you newbies have told me that law school discourages use of technology. That career offices tell students to stay off Twitter and not to blog for fear of creating an adverse paper trail.  To heck with that! You’re only young once; might as well use the facility for picking up new ways of communicating and make a few mistakes along the way then act like a middle-aged lawyer before you reach that point.  And by the way, you shouldn’t need someone my age to tell you to defy conventional wisdom either.

Although I’m sure there are CSO people who discourage social media use, I think that attitude is changing. Carolyn’s message is getting across, and I increasingly hear from career services professionals who encourage students to use Facebook, LinkedIn, Twitter, and blogs to help establish their professional personas. What I don’t see changing much, however, is the receptiveness of law students themselves to social media.

There are exceptions, of course. In my classes on privacy and cyberspace law, I’ve met a few students with strong backgrounds and interest in technology and its uses. However, my sense has always been that law students are a self-selected group, and that they self-select partly on the basis of lack of interest in, if not aversion to, technology.

Almost all of my students are on Facebook–although even there, the number of students who either have never been on Facebook or have deleted their accounts seems to be decreasing. But few of those students appear to have any sense of how Facebook might be useful rather than damaging to them in their professional lives. Hardly any of them are on Twitter. They have all watched YouTube viral videos, but few read blogs and fewer write them. Some are on Instagram; a few use Foursquare. Law students’ use of technology seems to be purely a part of their personal lives; few see it as integrated into their professional lives. Hardly any of them even use Powerpoint, much less use it well.

It is not surprising that law students tend to be relatively uninterested in technology compared to their peers in other lines of work. Law is never depicted on television or in movies as a profession that involves the use of technology. If I didn’t know any better, and I wanted a career that wouldn’t require much use of technology beyond word processing, law would seem to fit the bill.

I don’t know whether law professors have much influence in this area. Social technologies users among faculty remain relatively rare, and even if there were more of us, I don’t know if law students would see faculty practices as transferable to the practice of law.

Admittedly, all of this is anecodotal and based on my own limited experience. Do others have counter-evidence?

Open Letter to New Lawyer: You should be dragging me into the 21st century not the other way around

Just out of law school, your skills are of minimal use to me. Nothing you research or write will be worthy of filing without significant oversight and feedback. And that’s okay. Starting out, I wasn’t very useful myself either. But each time my research memos and briefs came back blushing with redline (or back in my day, red ink), I learned just a little bit more about how to craft a solid piece of work product. Within time – a matter of months, (and hours and hours of practice on my own time) – I could soon produce a file-ready document on my own.

These skills are what I’m willing to teach you. It’s part of my professional obligation as a lawyer to see to it that new generations learn the craft. But what I can’t abide is having to teach you how to tweet about current events. How to set up an RSS feed. How to track and stay on top of news from two or three industry blogs. Supposedly, you grew up on this stuff. So why do you need to take instructions from someone old enough to be your mother on how to use tools that should come as second nature? You should be coming to me with a week’s worth of proposed blog posts. You should be streaming out a dozen tweets on industry developments and setting up RSS feeds to share with me – not the other way around. You should have as robust an online footprint as I do, or more – yet I’ve got thousands of blog posts to your…zero? You should be able to figure out, in a snap, how to use video editing tools if you don’t already and volunteering to create cool informational videos so I can market my firm and generate more business that will support more new hires.

And Bernie Burk is one of the more hopeful writers on the law school crisis:

Judging from the oversupply revealed by the employment numbers gathered and disseminated by the ABA Section on Legal Education, my relatively unscientific guess is that we can expect the number of seats in accredited law schools to shrink somewhere between 20% and 40% from its high in the class entering in the fall of 2010.  My equally unscientific guess is that we can expect to see the reduction fairly quickly (on an academic timescale)—perhaps within the next 3-5 years.

This correction, which is obviously substantial, will create more dislocation and hardship.  That is deeply regrettable.  Students at institutions forced to close will have their studies disrupted, and perhaps terminated (with concomitant loss of their investment) if they cannot find an institution willing to accept them as transfers.  The faculty and staff of those failed institutions will lose their jobs, and finding similar jobs elsewhere will be very difficult as many of the schools remaining downsize their own faculty and staff to serve reduced student bodies.  (The difficulties I am hearing about from very accomplished and talented applicants for law-teaching jobs this year are just a small harbinger of things to come.)  Schools that choose to compete by reducing price, either by selective awards of financial aid that allow them to price-discriminate more effectively, or by reducing nominal tuition rates across the board, will undoubtedly require their faculties to teach more and get paid less….

Those in the Schadenfreude brigade who take some joy in these prospects should be ashamed.  When markets contract, many people suffer.  But is this the end of the world as we know it?  Is “the system” going to “collapse”?  Don’t be ridiculous.

It is well worth reading the whole thing.

Scott Greenfield at Simple Justice makes an important point about the online community’s reaction to the tragic suicide of Aaron Swartz:

But there remains a side of this tragedy that the geek community misses. Government overreaching, “bullying” as Lessig calls it, didn’t start on the day Aaron Swartz was arrested.  The eulogists, friends, watchers from the Hacktivist side seem to think this was an affliction that happened only to Swartz.  

Hardly. Aaron Swartz was just today’s victim of government overreaching and abusive prosecution, largely undistinguishable from the multitudes who came before him. But you don’t know about them, as they weren’t 14-year-old RSS code writers. So you didn’t notice. You didn’t care. They didn’t exist to you, even as they faced 50 year sentences just like Swartz….

Now you know what we know. Will your anger and interest end when Aaron Swartz is buried, and you can go back to writing code and thinking cool ideas? If you want to honor his memory, perhaps you might want to put all those brilliant minds to use changing the system that drove Swartz to take his own life. It’s still here, and it’s still just as bad as it was in Swartz’s case. And it will continue to be, even as you move back to your more pleasant pursuits.