The law, ultimately, is a system for addressing disputes and disruptions that rise out of the course of the daily life of people and businesses interacting with one another… and naturally, more and more of these interactions take place almost exclusively online, leaving an electronic trail on our devices and media storage systems. As a result, these electronic records and footprints have become more and more a part of what lawyers and paralegals have to deal with in virtually any legal case.
One of the most vital and intensive aspects of any legal dispute has always been the discovery process. In any dispute, legal teams rely on evidence as proof for the arguments they’re going to be making before the court. To make sure a trial is fair and that the arguments can be developed fully based on all the facts in play, the rules of the game require that both sides have full access to any and all relevant records the other side might have in making their case. Basically, everyone is required to show their cards.
The process of going through those records and selecting the appropriate documents to introduce into evidence is discovery. The six-step process involves:
In the past, this meant a lot of late nights going through filing cabinets and reading stacks of memos, receipts, invoices, and other paperwork generated in the normal course of business. But today, most of those records never end up as an ink-stain on a piece of physical paper: they are, instead, an ordered series of bits living on a piece of digital media.
Any of those bits can have just as much effect on the outcome of a case as a smoking-gun memo lifted straight from a desktop mail tray, so courts have repeatedly ruled that they are just as eligible under the rules of discovery as any other piece of evidence… and thus, e-Discovery was born.
Adapting to the e-Discovery Revolution
These challenges have made e-Discovery a growth market in legal services. Global Industry Analysts, a market research firm, projected in 2015 that the global market in e-Discovery would top $11 billion by 2020.
Performing discovery in the digital universe has led to a number of revolutionary changes in the legal profession, enough that the entire topic is now often dealt with separately from traditional discovery of hard copy evidence.
E-Discovery has required adaptations at every stage of the discovery process…
- Identification – In the past, a glance at a label on a filing cabinet could tell paralegals whether or not it might contain documents relevant to the case, but digital taxonomies are varied and often poorly designed, making it a lot more difficult to identify which buckets of data might be relevant.
- Preservation – Freezing and protecting potential evidence is enshrined in the rules of civil procedure, but electronic storage systems frequently perform low-level operations on stored files automatically, which can contaminate them. Even something as simple as opening a file and viewing it can alter date-stamps and ruin critical evidence.
- Collection – In one sense, collection has become much easier in an electronic world—all the works of an average small business can fit on a thumb drive these days. But transferring and protecting the data can also alter it. In the past it was as simple as having a runner take a manila envelope over to other members of a legal team, but collecting and transmitting digital information to other counsel is fraught with potential problems.
- Processing – The potentially massive volume of information to be examined presents obvious difficulties, but the need to preserve the raw files is what really complicates processing. Snapshots are often taken using specialized software.
- Review – As with processing, the volume of data can play havoc with the review process. The ease of duplication of electronic documents can result in paralegals looking at substantially the same document or e-mail chain multiple times, a tremendous waste of effort. Tools for automating this process are increasingly necessary.
- Production – Life is much easier for paralegals charged with transmitting discovery data to opposing counsel, at least—a thumb drive or DVD is easier to carry than a cart-load of file boxes.
The Benefits and Challenges that e-Discovery Brings
As noted, the sheer volume of electronic data presents major problems at almost every phase of e-Discovery. It’s so easy to record information electronically that modern systems generate a lot of it.
A database record or log entry exists for every separate element from a web-browser request, for instance. Minute-by-minute location data is churned out by cell phone use. Much of this can be meaningless, but somewhere in the huge pile of data may be the piece of evidence the case turns on.
The ability to understand the implications of the data and how it is stored requires new levels of technical skill for paralegals in e-Discovery. Discovery used to be about using legal maneuvers to compel the other part to produce evidence.
But no artfully written brief will convince a computer to cough up secrets—understanding code and logic is more important than legal reasoning when it comes to the e-Discovery process.
Electronic records themselves tend to generate byproducts as they are created and stored, byproducts that themselves can be important evidence.
Date and time stamps on e-mail or spreadsheets can prove who knew what and when, so they are tremendously valuable in court. But metadata was meant for computers to read, not people, so analyzing and protecting it requires a new approach and different skills.
Technology Assisted Review
There are some advantages to dealing with records largely in electronic format, and the ability to use technology itself to review them is one of them. In fact, it’s becoming almost mandatory to do so, given that the volume of data in some cases would be impossible to calculate in terms of the man-hours required to have human beings individually eyeball each record.
TAR allows paralegals and programmers to use predictive coding to comb through records to find items that are likely to be of interest.
E-Discovery Demands Specialization
All of these complications lead to a need for teamwork; the complete skill set required to successfully perform e-Discovery almost never relies exclusively on one person. In fact, the widely varied formats and considerations at play in the field may mean that a different mix of skills is necessary on any given case.
This has given rise to businesses that specialize in e-Discovery. Since discovery itself does not fall under the strictures of the practice of law, it isn’t something that necessarily requires an attorney to be involved. As a result, many of these firms are largely staffed with, or even owned by, paralegals.
E-Discovery Certification Options
With such highly specialized skills required, getting into e-Discovery today is easiest with some education. To that end, a number of organizations have begun to offer certificate programs in e-Discovery.
The CEDS certification from ACEDS was one of the first e-Discovery certificates available and remains one of the most in-demand from legal employers. CEDS covers the complete spectrum of e-Discovery issues. A rigorous exam and strict qualification and recertification requirements keeps standards high.
To get a CEDS you must:
- Document at least 40 CEDS credits in e-Discovery training or direct experience (importantly, your paralegal education can count toward this total).
- Pass a proctored 145-question exam covering 15 separate aspects of e-Discovery.
- Provide 2 professional references.
The certification isn’t cheap; ACEDS members pay $1,505 a year for membership, which includes the exam fee, while non-members pay $995 for the exam, plus any educational costs toward CEDS credits. Recertification is required every two years and requires 40 ACEDS credits of continuing education.
OLP offers the CeDP, or Certified e-Discovery Professional exam. Like the CEDS, you have to meet certain professional qualifications before being allowed to sit the exam. This includes:
- Three professional references.
- Proof of education, including at least 12 qualifying credits in e-Discovery-related fields.
- At least 3 years of e-Discovery experience, or 4 years if you do not have a BA degree.
A CeDP professional prep course is offered by OLP but is not mandatory for receiving certification. The course costs $895, or $695 for members of OLP.
The tests were designed by and are administered in partnership with Pearson VUE. Exam cost is $595, or $395 for OLP members.
The CeDP does not require renewals.
Although getting certified can be time-consuming and costly, it can also be worthwhile. According to The Balance in 2017, e-Discovery managers in hot locations like New York can make up to $250,000 annually. Elsewhere in the country, they can command salaries of $131,000 at the management level, while averages hover around $100,000.
NALS offers a specialty certificate in e-Discovery that costs $200 for non-members and $150 for members. The requirements are less stringent than for other certificates; you have to accumulate 50 continuing legal education (CLE) hours in relevant seminars, courses, or post-secondary education and provide documentation of those hours with your submission.
The certificate is good for five years after being awarded.
Not All e-Discovery Training Options Are Worth Your Time and Money
E-Discovery is only likely to expand as a niche in the discovery process and it is likely to change as rapidly as technology itself changes, so continuing education will be important for any paralegal hoping to specialize in the field.
But because e-Discovery turned into such a hot field so rapidly, you’ll find a lot of courses popping up to provide additional education specific to the subject that aren’t likely to give you the kind of in-depth training you really need.
Some of these courses are well-established and generally respected, such as those from LexisNexis, but many are simply cashing in on the latest hot trend. It’s generally best to stay focused on a certification if you are interested in e-Discovery training in general, or to pick a narrowly focused, highly technical training course if there is some particular skill deficit you feel you should remedy.