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Idealistic musings about eDiscovery
An old joke has a farmer entering his plow mule in the Kentucky Derby. A city slicker at the track asked the farmer why he would enter the mule in a thoroughbred race that he could not hope to win. “Well,” said the farmer, “I reckon the association might do that ol’ mule a lot of good!”
My first professional love is evangelizing about eDiscovery to whomever in the legal profession (and anyone else unfortunate to cross my path during a good rant) will listen. However, I currently earn most of my paycheck (which I also love, in case any of my bosses are reading this) training legal professionals in the eDiscovery software suite offered by Autonomy (soon to be a subsidiary of ConHugeCo). And, as part of those duties, I now get to preach the Autonomy eDiscovery (and information governance) gospel to our new hires.
Last week was a bit different. Our “new hires” included a huge team that recently joined us from Iron Mountain Digital/Mimosa/Stratify, during which we acquired an all-star lineup of eDiscovery and information governance subject matter experts:
Uh huh … and I’m supposed to train them.
I’m just a litigator who’s been splashing around in the deep end of the eDiscovery pool for several years. These folks are heavy hitters! Well, I learned at least as much from them last week as they did from me, and dare I say … the association done me good! It was a privilege to meet and talk with each of you, and I’m glad to have you folks aboard!
(By the way, David Bayer helped me to clarify my thinking on a blog post I’ve been editing for much of the past week. Allow me to thank him in advance for his contributions; I hope to have this next post up in the next few days.)
Much has been written about eDiscovery industry certification programs in the blawgosphere lately. The Organization of Legal Professional (OLP) has one, the Association of Certified E-Discovery Specialists (ACEDS) has one, Kroll Ontrack has one, and the Association of Litigation Support Professionals (ALSP) is still trying to get theirs off the ground.
Well, if so many organizations are offering their own “industry certifications” … how can ANY of them truly be an industry certification?
One of the reasons I became a charter member of ALSP is that one of their founding missions was to create a non-profit, non-biased, industry-wide eDiscovery certification program. ALSP got bogged down in politics and personalities and budget shortfalls, and that noble mission never took form (and that’s among the reasons I left ALSP). Still, there definitely was, and remains, a need for some sort of standardized validation of a particular eDiscovery skill set.
We have to question the motives of someone who creates an eDiscovery certification program – even one that’s supposedly “non-profit”, as OLP claims theirs to be – based on their own initiative. ACEDS doesn’t even maintain a pretense of altruism; their certification program, not to mention the articles on their website (just try to read one), are unabashedly “for profit”. And Kroll? Well, Kroll’s a very large, very for-profit company; what do you suspect their motivation could be?
Patrick Oot wrote a thoughtful essay for Law Technology News, titled “Sham Exam?”, questioning the usefulness of eDiscovery certification, not-so-subtly referring to the ACEDS program; and ACEDS’ exec director Gregory Calpakis fired back. OLP chair Chere Estrin got in her own shots in a separate interview. I think both Gregory and Chere missed Patrick’s point, which was directed toward lawyers but has broader implications: You can’t necessarily trust the certification programs, and even if you can, you can’t necessarily market your new certification without running afoul of your state bar’s ethics rules.
My thoughts are these:
There are critical needs for uniform, comprehensive eDiscovery training programs, for every legal and technical job classification within an organization or government agency. OLP and ACEDS both appear to address these needs; so thanks to them, there now appear to be credible ways for a newbie to the eDiscovery realm to get up to speed. (Kroll’s course requires three separate one- or two-day courses to learn everything, and there is no comprehensive exam, so what they call “eDiscovery Certification” is actually just a certificate of attendance! Misleading? You be the judge.) I’m all for what OLP and ACEDS are theoretically trying to do; after all, that’s why I initially joined ALSP.
But “industry certification” under these circumstances? Come on. First, the very notion that you can have competing “industry certifications” issued by unassociated organizations is ludicrous. “Who died and made YOU the arbiter for industry standards?” you might well ask either group. There is no governing body for the eDiscovery industry, and even ALSP would have had trouble gaining credibility for its non-profit certification program had it succeeded. Second, isn’t the important thing here the eDiscovery industry knowledge and familiarity with best practices, and not some piece of paper? Don’t we want job hunters to demonstrate their knowledge in the job interview, rather than simply “summon the vast power of certification”?
We don’t even have consistency among the states when it comes to requiring certification for paralegals (some states don’t require certification at all). To suggest that an eDiscovery “certification” could be more than an expensive piece of paper ignores the reality that there is no uniform nationwide certification for anything where the legal industry is concerned. That’s not going to change with eDiscovery (we haven’t even seen most states promulgate their own ESI rules yet); and if OLP and ACEDS are marketing their offerings as “standardized industry best practices” rather than merely competing certifications, somehow I’ve missed it. (And let’s not even broach the issue of whether these certifications would be of any value in any other country.)
I certainly applaud the notion of a comprehensive system of eDiscovery training, and I can even get behind the steep prices that OLP and ACEDS are asking (education ain’t cheap, after all). Just … stop marketing these as “industry certifications”. As Kroll has proven, the term doesn’t really mean anything (certainly not yet); and as such, it only hurts your credibility.
(Note: As I was researching this, I found a recent blog post by Dennis Kiker on this topic that I recommend to you.)
(UPDATE: On Monday, August 22, ALSP and ACEDS issued a joint press release in which (a) ALSP endorsed ACEDS’ certification program, and (b) pulled the plug on its own.)
It’s time that I utilized some of the technology that I earn my living evangelizing about. So, welcome to my new eDiscovery blog.
There are dozens of legal blawgs and newsfeeds pertaining to electronic discovery issues. Most contain lots of posts that may not be useful, on a daily basis, to counsel and support staff. I believe that your main questions ought to be “What do I need to know?” and “How does this affect me?” With this blawg, I hope to answer those two questions.
The title “Part of the Solution” alludes to my own saying: “No one ever went to law school saying, ‘I want to be part of the problem.’” And yet … so many newly-minted lawyers have had their idealism squeezed out of them, if not by the legal education process itself, then by the harsh demands of survival in the legal industry.
I happen to believe there’s still room for healthy idealism in the legal profession; indeed, I don’t think our system can endure without it. Nowhere is this more true than in adapting to the constant evolution of litigation practice demanded by the evolving world of eDiscovery. Those lawyers who will not evolve, out of fear that any glimmer of cooperation will end up being exploited against them by opposing counsel, must ultimately be left behind. Those who will survive and thrive – those who will realize that there is no valid alternative in modern litigation practice than to embrace the notion of cooperation – share my idealism.
This is my soapbox. I’m aware that every word I type in here will likely follow me around for the rest of my career; so rest assured, if you see it here, that’s because I truly believe in what I’ve written. If you believe in it too, then please stick around. I think you’ll like what you see.