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Should Lawyers Submit to an E-Discovery Competence Audit?

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By Jonathan R. Tung, Esq. on December 23, 2015 2:59 PM

Lawyers should really consider opening themselves up to being audited for their competence in handling e-discovery. Increasingly, e-discovery is becoming an integral part of being a litigator. Proficiency in e-discovery may even be key factor in whether clients decide to litigate.

Physical Discovery? How Do you Spell That?

Many storied law firms used to cut their teeth on the long and laborious process known in the law as discovery -- the examination of evidence. For larger and more monied clients this meant financial records -- mountains of boxes of musty papers and wood-mites. It was the bane of associates and paralegals, and partners would rub their hands greedily because it was standard to charge by the hour.

But that's old-hat. Only a few necessary records are actually kept on paper anymore. In fact, over 95 percent of discovery these days is of the e-discovery type. Now, instead of mountains of papers, you'll be forced to handle flash drives, hard drives and the cloud.

Willingly Open Up?

Most firms will likely be reticent to open their books to their clients, but it ought to be considered. Why? Because the monumental cost of e-discovery factors into a client's willingness to litigate. Experts estimate that e-discovery gobbles up anywhere between 50-80 percent of litigation budgets.

It seems that even if the pile of paper has shrank, the costs of handling the electronic evidence has not. And even thought litigators have produced good returns by asking the client to take the e-discovery investment, polls really seem to indicate that most would think twice about litigating again. This is with solid wins. But with larger cases of e-discovery costs going up into the hundreds of thousands, who can blame them? The incentive to settle is extraordinarily high because of trending costs.

Be Competent or Die

It's in the best interest of lawyers to get good at the new discovery paradigm and to be ready to show-off their skills and competence. Whether lawyers know it or not, other attorneys are getting better at e-discovery by mere virtue of the fact that many of them haven't known any other kind. These attorneys will eat the lunch of their less technically-fluent counterparts.

The most reasonable strategy for litigators is to make it known to the client that their best interests are also your best interests. With scanning, copying, editing, and electronic discovery becoming more prevalent, clients will naturally search not only for the more skilled litigator, but the litigator that can keep his costs low. E-discovery competence is also arguably a professional obligation. So, e-discovery does not mean the extinction of litigators, but litigators should learn to adapt and embrace the change.

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