Electronic Education

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When it comes to electronic discovery, every attorney needs a fundamental understanding of the concept, says attorney Matthew J. Stippich, vice president and general counsel of computer forensic firm Digital Intelligence.

“It’s something we’re becoming more sensitive to with the changes in rules” he said. “It’s a real challenge amongst attorneys to have an understanding of how traditional rules of discovery apply to electronic information.”

But what qualifies as a “fundamental understanding?”

A Los Angeles-based non-profit group is attempting to answer that question.

The recently formed Organization of Legal Professionals (OLP) is developing a certification exam on “core competencies” of e-discovery, including data collection, ethical considerations and an understanding of the 2006 changes to the federal rules of civil procedure.

According to OLP’s Web site, an exam for non-attorneys like paralegals, IT vendors and consultants is in development and expected to debut on March 1, 2010.

Marquette University Law Professor Jay Grenig is an OLP board member. He said the organization hopes that the certification process will help give legal professionals more confidence when dealing with e-discovery issues.

While the exam is merely a “certification and not licensure,” Grenig noted that completing the process would indicate a serious interest in e-discovery education.

According to Grenig, OLP focused on non-lawyers first because they typically handle the bulk of e-discovery.

He suggested that for attorneys looking to hire a staff member to handle e-discovery issues, participation in the program would demonstrate that an individual “is serious enough about this that I did some education and wanted to increase my competence in the area.”

A certification program aimed at attorneys could be forthcoming.

“The competence expectations of lawyers may be different than that of a tech-support person,” Grenig noted.

A little knowledge is a dangerous thing

But Stippich questioned whether completion of an exam demonstrates someone qualified in an ever-evolving area of the law.

“Lots of people are out there trying to educate attorneys, but it’s not like certification makes one qualified,” he said.

Attorney Bruce A. Olson runs ONLAW Trial Technologies LLC, a forensics consulting firm in Appleton. He suggested that a certification exam has its limits. While the process might ensure a working knowledge of issues like document retention and preservation, lawyers will still need to recognize when to consult an expert.

For example, in a situation requiring a litigation hold, there is a danger that someone without the requisite knowledge could skip some data preservation steps.

“Not knowing what you don’t know can be a big issue,” said Olson.

Godfrey & Kahn SC attorney Jonathan R. Ingrisano, who helped form the firm’s E-Discovery Working Group, agrees.

“Some attorneys take e-discovery very seriously, and some are trying to reach kind of a tacit agreement with a wink and a nod and hope it doesn’t come up,” he said.

At Godfrey & Kahn the working group puts on mini-e-discovery seminars and serves as a resource for other attorneys.

Michael Best & Friedrich takes a similar approach, though the firm does not have a formal working group of e-discovery experts.

Litigation partner John C. Scheller has presented on e-discovery topics internally and is one of the “go-to” guys for his colleagues.

He said the firm has formed internal checklists and questions to ask when confronted with e-discovery issues, and makes sure that less-educated attorneys can access experts.

“We’ve had a couple of big cases where litigators will bring in someone else in the firm who is an e-discovery expert to work on those issues at the front end,” he said.

Ingrisano noted that it doesn’t necessarily make sense for everyone to become an expert on e-discovery.

“Clients can’t afford to pay lawyers to be both litigation experts and IT experts,” he said. “What we try to do is educate colleagues as to key issues so they recognize what is important and what is problematic.”