In the short span of a decade and a half, the practice of discovery of writings, recordings, photographs, and other non-testimonial evidence in civil cases in state and federal courts has transformed from one that was based almost entirely on the manual retrieval, review and production of tangible documents by lawyers and paralegals to one that is almost entirely dependent on accessing, searching, reviewing and producing digital or computer-generated information. The “digital explosion” has required fundamental revisions to the Federal Rules of Civil Procedure, first in 2006, and most recently in 2015, and even more fundamental changes in how lawyers and judges must think about discovery in civil cases. Along the way, many participants in the process of civil litigation felt as though they were called on to engage in a battle of wits for which they were unarmed—lacking the technical know-how to survive. While the newest members of the legal profession typically have greater knowledge (and less fear) regarding what is needed to engage in what has come to be known as “e-Discovery,” there are many lawyers and judges of a certain age who do not, and who look at the process with concern, if not fear and loathing.
Part of the problem lies with not knowing where to begin to develop the knowledge and experience needed to survive in the daunting new world of e-Discovery. Where do you turn to learn what the issues are, let alone how to resolve them? Most lawyers are not computer scientists, statisticians, or semanticists, and getting the training to be competent in using computer assisted review (also called technology assisted review, or “TAR”) to more effectively and inexpensively search large digital information sets seems beyond our grasp.
Enter Ralph Losey and the ABA with e-Discovery for Everyone, an introduction to e-Discovery that avoids over-technicality, without being substantively superficial, and manages to be interesting and at times even amusing. Ralph has been writing his e-Discovery Team blog since 2006, and e-Discovery for Everyone assembles many of his most helpful and recent blog posts in a collection that will be of value to newcomers to e-Discovery as well as seasoned practitioners. The book is written in a conversational style, and is divided into short chapters easily read in a relatively short sitting. Sprinkled throughout are very helpful references to cases, secondary sources and other materials that give the book depth beyond its relative brevity. A quick look at the table of contents shows an impressive inventory of the most important e-Discovery topics of the day: new methods of search and review, a discussion of the 2015 amendments to the Federal Rules of Civil Procedure, practical advice on litigation holds, how to evaluate the reasonableness of e-Discovery vendor bills, the advantages of transparency in selecting how to design a search for digital information, why cooperation during the e-Discovery process is essential to success, ethical issues associated with e-Discovery, and how to confront and control e-Discovery abuses.
e-Discovery for Everyone provides a welcome addition to the literature on e-Discovery. Like a well-designed website, it is easy to navigate, informative, interesting, comprehensive without being overwhelming, and enjoyable.
Praise for e-Discovery for Everyone:
Attorneys can no longer claim to be confused by e-discovery! This book is a tremendous resource that makes e-discovery accessible for any legal professional, no matter past experiences with technology and the law–this is a “must-have” for any professional in the e-discovery industry, or trying to learn the industry.
Mark R. Williams–CEO and President of Kroll Ontrack, Inc.
Losey is a master at making e-discovery accessible and even fun.
John Tredennick–Founder, CEO of Catalyst Repository Systems; past Chair of the ABA Law Practice Management Section
If there were an award in the legal profession for ‘most creative iconoclast,’ I’d be honored to present it to Ralph Losey for his short, entertaining, and provocative lessons in e-discovery. In 19 easy-to-read essays, Ralph adroitly weaves pop culture, science, technology, and astute case law analysis into the warp and weft of ethical responsibility and justice. All of us should wear the resulting cloth every day in our practice, if for no other reason than it itches, which is a good thing.
Kenneth J. Withers–Deputy Executive Director, The Sedona Conference®
Ralph Losey is an acknowledged ‘early starter’ yet continuing thought leader in e-discovery and all the complexities that go into that phrase. Anything he does is well worth the read!
Ronald J. Hedges, Senior Counsel for Dentons; former U.S. Magistrate Judge
Ralph Losey has done it again: he is the Thomas Paine of e-discovery, with another excellent set of essays making the case that lawyers should follow ‘commonsense’ principles when dealing with the brave new world of electronically stored information. These principles include, first and foremost, litigators working as a team with e-discovery lawyers and outside specialists to ensure that discovery obligations are met. Second, they include lawyers recognizing that the newly amended Federal Rules of Civil Procedure emphasize that opposing counsel are expected to work cooperatively together to narrow areas of disagreement, and that lawyers should keep in mind that discovery should be proportional to the matters at stake in litigation. And third, lawyers should maintain competence on technical subjects, such as how to search through large volumes of digital data. This book is an easy (and fun to read) introduction to some of the most important topics in e-discovery. There is no better “explainer-in-chief” of e-discovery writing today!
Jason R. Baron, Drinker Biddle & Reath LLP,; former Director of Litigation at the U.S. National Archives and Records Administration
Litigation lawyers must envy estate lawyers. When was the last time the Rule Against Perpetuities changed? These days, since all discovery and litigation is electronic discovery and litigation, the poor litigator has to absorb technological and rule changes, new cases, and the very definition of their competence and ethical obligations. It is a good thing they have Ralph Losey and this collection of essays. Ralph is utterly fearless and, unlike many of his colleagues, welcomes technological changes and insists that their often drastic implications for the courts, lawyers, and society be considered soberly and realistically. He is as comfortable with the insights of social psychology, philosophy, and mathematical reasoning as he is with metadata. And the man refuses to be dull. His book is full of song lyrics, truly corny jokes, and clever drawings. Over the years, Ralph has forced us to look beyond our narrow concerns and try to see where all this change is taking us. This is a most welcome book.
John M. Facciola, U.S. Magistrate Judge for the U.S. District Court for the District of Columbia (retired); Adjunct Professor of Law, Georgetown Law School