The eDiscovery world is atwitter with two new developments – one is Judge Laster’s opinion in the EORHB case where he required both parties to use predictive coding. The other is the new EDBP model, created by Ralph Losey (and team) to “provide a model of best practices for use by law firms and corporate law departments.” Ralph was kind enough to answer a few questions for eDiscovery 2.0:
1. While perhaps not fair, I’ve already heard the EDBP referred to as the “new EDRM.” If busy folks could only read one paragraph on the distinction, could you set them straight?
“EDRM, the Electronic Discovery Reference Model, covers the whole gamut of an e-discovery project. The model provides a well-established, nine-step workflow that helps beginners understand e-discovery. EDBP, Electronic Discovery Best Practices, is focused solely on the activities of lawyers. The EDBP identifies a ten-step workflow of the rendition of legal services in e-discovery. Moreover, EDBP.com attempts to capture and record what lawyers specializing in the field now consider the best practices for each of these activities.”
“By the way, although I have a copyright on these diagrams, anyone may freely use the diagrams. We encourage that. We are also open to suggestions for best practices from any practicing lawyer. We anticipate that this will be a constantly evolving model and collection of best practices.”
2. Given the lawyer-centric focus, what void are you attempting to fill with the EDBP?
“I was convinced by my friend Jason Baron of the need for standards in the world of e-discovery. It is too much of a wild west out there now, and we need guidance. But as a private lawyer I am also cognizant of the dangers of creating minimum standards for lawyers that could be used as a basis for malpractice suits. It is not an appropriate thing for any private group to do. It is a judicial matter that will arise out of case law and competition. So after a lot of thought we realized that minimum standards should only be articulated for the non-legal-practice part of e-discovery, in other words, standards should be created for vendors only and their non-legal activities. The focus for lawyers should be on establishing best practices, not minimum standards. I created this graphic using the analogy of a full tank of gas to visualize this point and explained it my blog Does Your CAR (“Computer Assisted Review”) Have a Full Tank of Gas?”
“This continuum of competence applies not only to the legal service of Computer Assisted Review (CAR), aka Technology Assisted Review (TAR), but to all legal services. The goal of EDBP is to help lawyers avoid negligence by staying far away from minimum standards and focus instead of the ideals, the best practices.”
3. The EDBP has ten steps. While assuredly unfair, what step contains the most controversy/novelty compared to business as usual in the current e-Discovery world?
“None really. That’s the beauty of it. The EDBP just documents what attorneys already do. The only thing controversial about it, if you want to call it that, is that it established another frame of reference for e-discovery in addition to the EDRM. It does not replace EDRM. It supplements it. Most lawyers specializing in the field will get EDBP right away.”
“I suppose you could say giving Cooperation its very own key place in a lawyer’s work flow might be somewhat controversial, but there is no denying that the rules, and best practices, require lawyers to talk to each other and at least try to cooperate. Failing that, all the judges and experts I have heard suggest that you should initiate early motion practice and not wait until the end. There seems to be widespread consensus in the e-discovery community on the key role of cooperative dialogues with opposing counsel and the court, so I do not think it is really controversial, but may still be news to the larger legal community. In fact, all of these best practices may not be well-known to the average Joe Litigator, which just shows the strong need for an educational resource like EDBP.”
4. Why not use “information governance” instead of “litigation readiness” on the far left hand side of the EDBP?
“There is far more to getting a client ready for litigation than helping them with their information governance. Plus, remember, this is not a workflow for vendors or management or records managers. It is not a model for an entire e-discovery team. This is a workflow only for what lawyers do.”
5. Given your recent, polarizing article urging law firms to get out of the eDiscovery business, how does the EDBP model either help or hinder that exhortation?
“This article was part of my attempt to clarify the line between legal e-discovery services and non-legal e-discovery services. EDBP is a part of that effort because it is only concerned with the law. It does not include non-legal services. As a practicing lawyer my core competency is legal advice, not processing ESI and software. Many lawyers agree with me on this, so I don’t think my article was polarizing so much as it is exposing, kind of like the young kid who pointed out that the emperor had no clothes.
The professionals in law firm lit support departments will eventually calm down when they realize no jobs are lost in this kind of outsourcing, and it all stays in the country. The work just moves from law firms, that also do some e-discovery, to businesses, most of whom only do e-discovery. I predict that when this kind of outsourcing catches on, that it will be common for the vendor with the outsourcing contract to hire as many of the law firm’s lit-support professionals as possible.
My Emperor’s no-clothes expose applies to the vendor side of the equation too. Vendors, like law firms, should stick to their core competence and stay away from providing legal advice. UPL is a serious matter. In most states it is a crime. Many vendors may well be competent to provide legal services, but they do not have a license to do so, not to mention their lack of malpractice insurance.
I am trying to help the justice system by clarifying and illuminating the line between law and business. It has become way too blurred to the detriment of both. Much of this fault lies on the lawyer-side as many seem quite content to unethically delegate their legal duties to non-lawyers, rather than learn this new area of law. I am all for the team approach. I have been advocating it for years in e-DiscoveryTeam.com. But each member of the team should know their strengths and limitations and act accordingly. We all have different positions to play on the team. We cannot all be quarterbacks.”
6. [Bonus Question] “EDBP” doesn’t just roll off the tongue. Given your prolific creativity (I seem to recall hamsters on a trapeze at one point in time), did you spend any cycles on a more mellifluous name for the new model?
“There are not many four-letter dot-com domain names out there for purchase, and none for free, and I did not want to settle for dot-net like EDRM did. I am proud, and a tad poorer, to have purchased what I think is a very good four-letter domain name, EDBP.com. After a few years EDBP will flow off your tongue too, after all, if has an internal rhyme – ED BP. Just add a slight pause to the name, ED … BP, and it flows pretty well thank you.”
Thanks Ralph. We look forward to seeing how this new model gains traction. Best of luck.