As part of the St. Francis School of Law Career Insights series, Professor Joel Henry from theUniversity of Montana Law School recently spoke to St. Francis students enrolled in the Juris Doctor program, providing a primer on electronic discovery in his talk entitled Introduction to eDiscovery AKA—How to Handle an Electronic Tarball. Professor Henry holds a Ph.D. in Computer Science and worked in software engineering before moving to academia. He also holds a Juris Doctor degree. Professor Henry observed that a technical background is an excellent foundation for the study of law as more tech-savvy attorneys are needed in the legal profession. A Juris Doctor degree can help leverage a computer science background toward a new career at the intersection of law and technology.
Prof. Henry pointed out that the legal community is in the process of adapting to the technological realities of modern law practice. At the same time, lawyers have an ethical duty of competence to understand the benefits and risks associated with relevant technology. A lawyer’s duty of confidentiality requires that confidential client information not be produced to opposing parties. Lawyers with a technical background may be brought in as experts to consult with those who are less conversant with technology.
The need to understand technology is particularly significant in litigation, where one party has sued another. During litigation, discovery of information pertaining to a dispute is generally fairly broad. Parties engaged in a dispute have an obligation to preserve information, including information from digital sources. Engaging in this process with a client may require substantial technical expertise. Parties often must marshal large amounts of digital data pertinent to the dispute. This information must be sorted to segregate information that is relevant from that which does not relate to the parties’ claims and defenses. In addition, parties exchanging information in connection with a dispute also must avoid inadvertently producing information that is confidential or privileged. At the same time, the relevant rules require that discovery be proportional to any individual case.
Historically, this process of discovery involved personal review of all documentation. With the proliferation of digital information, this is no longer cost-effective in many cases. Meeting these obligations is challenging. Technology can assist with the review and sorting of large amounts of information, in order to avoid the expense previously associated with completing this process manually.
As Prof. Henry explained, the process of discovery of electronic data known as eDiscovery, involves locating, securing, reviewing and producing digital information, including e-mail, files and other data. Of course, there is a standard process for lawyers to employ to address their discovery obligations in connection with litigation. Among the most challenging aspects are the collection, preservation and selection of documents for production to the adverse party. Because of the volumes of information, it is no longer cost effective to read everything manually in cases with a significant number of documents, sorting what is relevant to the dispute and segregating what is privileged.
One solution Prof. Henry described is predictive coding. While still in an experimental stage, Prof. Henry described how the industry is moving toward adoption of this approach with some court approval. Predictive coding automates the selection of information for production. Essentially, the process requires marking a random subset of a large amount of digital data for relevance and non-relevance. Predictive coding software then examines the subset and through machine learning, marks the larger data set. Repeating this process confirms and corrects the computer evaluations.
St. Francis School of Law focuses on practical professional skills with the goal of producing graduates who are ready to practice law upon graduation. The Career Insights series is part of the ongoing effort to provide St. Francis students with the opportunity to meet with lawyers in all aspects of the legal profession.