Earlier this month, LOGICFORCE experts Phillip Hampton, founder, and Kyle Campbell, Director of Litigation Support, presented at the Chattanooga Bar Association’s Continuing Legal Education (CLE) seminar, along with Bill Ramsey, member at Neal & Harwell.
During the three-part presentation, Hampton and Ramsey first discussed the latest, time-saving technology that increases productivity during a hectic day. Campbell took the stage to discuss the trends that are causing increased needs for attorney competence with respect to eDiscovery along with tips for small firms on managing the evolution of eDiscovery. Hampton and Ramsey concluded the afternoon with a deeper review of the ethical expectations and implications for attorneys’ competence with technology. Below are a few insights from their presentations.
Big data further complicates eDiscovery efforts
Data, and the devices using and storing it, are constantly evolving. With data volumes growing exponentially, doubling in volume every 2 years, it’s projected that 40,000 exabytes of data will be generated worldwide by 2020. Emojis, encrypted messaging apps, and platforms like Microsoft Teams and Slack significantly contribute to the breadth and complexity of this ever-expanding volume of data. Because of big data, attorneys are struggling to keep pace and collect relevant electronic information. The diversity of file types, the accessibility of the various data sources, and a lack of organization or structure around all this data contributes to the challenges attorneys face in collecting, analyzing, and digesting the important pieces that support their clients’ claims and defenses. Further, the risks of spoliation or disregard for defensible procedures in dealing with the data central to their representation of their clients all loom large in any matter for which eDiscovery must be considered.
Heightened client demands require an elevated level of expertise
A significant number of plaintiffs’ attorneys in corporate litigations are using eDiscovery, at the very least, as a fallback position when the merits of their cases fail; or, as a front and center strategy to indict the defensibility of their opponents’ evidence. Many corporate clients recognize that document review is the single most expensive aspect of a litigation and those with the means are bringing eDiscovery tools in-house in an effort to manage data better and reduce the expense and complexity of eDiscovery. Unfortunately for outside counsel, this leads to lost ground as their clients’ trusted advisors for eDiscovery-related matters.
Case Law and ABA Ethics expect technological aptitude
Landmark decisions following the 2005 and 2016 updates to the Federal Rule of Civil Procedures have shaped the legal atmosphere under which eDiscovery matters are adjudicated. Campbell also pointed out that in 2012, the ABA Model Rules of Professional Conduct Amendments included an update to Rule 1.1 on competence, specifically noting the need for attorneys to remain current on technology trends in order to meet the obligations laid out by the Model Rules. These regulations require attorneys to maintain learning and skills related to the technology they use, eDiscovery software included. To keep abreast of technology changes that affect eDiscovery, attorneys should follow CLE requirements, prioritize learning, consult with their colleagues and networks, and have a trusted, outsourced eDiscovery partner.
eDiscovery Tips and tricks for the small firm
The forces behind modern eDiscovery challenges convolute litigation requiring eDiscovery and may bog down a small firm or solo practitioner. The good news is that small firms and solo practitioners are not alone. Vendors, as well as local and regional legal groups like Women in eDiscovery and ILTA chapters are all resources from whom advice may be sought in addressing eDiscovery issues. Electronic resources like EDRM.net, the Sedona Conference website and LinkedIn groups all have existing information or member groups with professionals that are willing to field certain questions. Campbell also recommends key software applications and hardware items including Adobe Acrobat, FTK Imager and a USB Write Blocker.
ABA Ethics Rules concerning attorneys and technology
Finally, in the ethics portion of the presentation, Hampton and Ramsey conducted a deeper dive into the widely adopted ABA model rule update on technical competency, and its impact on the practice of law. Particular attention was given to the language of the rule that states attorneys should know the “benefits and risks associated with relevant technology.” Topics were focused on specific benefits of technology that attorneys should take advantage of, as well as some serious risks that law firms should take care to mitigate, including managing clients’ eDiscovery-related data and understanding the tools that can facilitate eDiscovery review and analysis.
The state of Cloud Computing and its evolution as both a benefit and a risk were explored, particularly the ethical considerations concerning privacy and security of client data in the Cloud. The current state of attorneys’ ethical obligations, and the legal industry’s current perception of cloud data management were discussed as an evolutionary process since the introduction of the Cloud about a decade ago.
Kyle Campbell is the director of litigation support at LOGICFORCE, a leading technology consulting firm serving the legal industry. He has nearly 20 years of experience in all facets of the industry, including e-discovery software development, strategic business consulting with an emphasis on e-discovery and litigation support and working in-house with law firms and e-discovery service providers.
Phillip Hampton is the president and founder of LOGICFORCE, a legal technology consulting firm that improves the profitability and operations of law firms through the strategic application of technology. Phillip has over 20 years of experience in the information technology industry and has consulted with numerous law firms and government agencies in the areas of practice management systems, technical litigation support, computer forensics, electronic data discovery, and trial presentation technologies. Phillip received his B.S. degree in computer science from Lambuth College and his M.S. degree in computer science from Vanderbilt University. He is an Encase Certified Examiner and holds a number of product certifications for law firm practice management and litigation support systems.
Bill Ramsey is a member of the firm of Neal & Harwell. The primary focus of Mr. Ramsey’s professional practice is complex civil and criminal litigation. He attended the Georgia Institute of Technology where he graduated with high honors in Mechanical Engineering. He received his law degree from the University of Tennessee where he was a member of the Order of the Coif and the University of Tennessee Law Review. He has represented a wide variety of defendants in federal white-collar prosecutions and investigations. He has extensive civil jury trial experience in a wide variety of cases, including personal injury, business torts, computer and technology litigation and complex commercial transactions. Bill is responsible for the firm’s computer, telecommunications and technical equipment. He has lectured extensively on the use of technology in the practice of law, litigation involving computers and technology, and the impact of the Internet on the practice of law, generally, and on litigation, specifically. He is past President of the Nashville Bar Association, a Fellow in the Nashville Bar Foundation, and a member of the American Bar Association, the American Bar Foundation, the American Board of Trial Advocates, and active in the Tennessee Bar Association and the Harry Phillips Inn of Court. He is also active in the Nashville community as a member of the Development Board of Second Harvest Food Bank, the Co-Director of the Music City Triathlon and a volunteer for several charities.