Understanding eDiscovery Can Boost a New Associate’s Career

Your academic career does not end once you pass the bar and become a young associate. In your new role, there are still unfamiliar legal concepts to learn and career ambitions to weigh with each decision you make. Each day you will be challenged to apply your knowledge practically.

A key first lesson to learn as a young associate is that a favorable outcome for your client is less likely to be the result of happenstance or luck and more likely to be the culmination of a lot of preparation. This article encourages you to learn as much as possible about eDiscovery and its practical application to your case load in the first few years of practice. Understanding eDiscovery and how it is used in the modern legal practice will not only make you a better attorney but it will be a boost for your career.

Some Basics

“eDiscovery” can be used as an umbrella term for both the legal and operational considerations related to how electronically stored information (ESI) is used in the modern day practice of law. Your knowledge of eDiscovery will have both a practical legal application that will help you address substantive legal questions and an operational application. Both applications are critical to career advancement.

Your understanding of eDiscovery will prepare you to: (1) develop your dispute preparation skills, (2) start your rainmaking career through your ability to discuss resource allocation with firm senior management and clients, (3) develop your leadership skill set, (4) gain expertise on privilege issues and (5) streamline your workload.

1. Become the Fact Marshal
Career Skill Developed: Dispute Preparation

Almost all information in current litigation is ESI. More information is generated today than ever before and knowing how to access and organize ESI in a quick and efficient manner is the key to your success in the discovery phase of litigation. When your case team needs to know a relevant fact or must figure out what gaps exist in case team knowledge, your understanding of eDiscovery will allow you to find answers quickly.

Consider ESI your ammunition for the case and yourself as the soldier who is tasked with knowing how to the load the proverbial smoking gun quickly.

Learn the Software.

Your firm will likely be using some form of litigation review software. First, spend some time getting trained on the software so you know how to use the technology to your advantage. That will enable you to review documents easily, code them, flag them for deposition prep, collect your most key documents quickly and share them with other case team members.

Document.

You should also keep detailed notes, identify gaps in information to investigate, develop chronologies and track deposition notes in your review platform. These are all methods of analyzing ESI and once they are mastered you will be thoroughly prepared for your next steps in the discovery process.

Benefit.

Becoming a marshal of the facts will naturally map out your next action steps. Your ability to find your next billable project will evolve from there. An understanding of how to analyze ESI could be a career in itself, depending on the type of clients and firm where you work, or it can serve as a solid foundation for the next phases of litigation.This work enables you to answer the tough fact-specific questions of a case with confidence. If you never understand more than this first skill, it would still be enough to propel your litigation career forward.

2. Master Resource Allocation
and Client Communication
Career Skill Developed: Rainmaking

If understanding how to access and organize ESI is the first step, this next step is a very close second for a young associate. In order to parlay your understanding of the eDiscovery process into a career boost, you must become an expert on the operational process used to preserve, collect and process ESI. These operational issues are usually in the hands of computer science technical experts within the firm, but they comprise a body of knowledge that once gained will differentiate one young associate from the next.

Meat and Potatoes.

Consider this step the “where does my food come from” part of eDiscovery. When you open your litigation review platform, there is data ready for analysis. A young associate must consider how the data ended up on the plate to become part of that corpus of documents, consider if the right custodians were interviewed, if all relevant materials were collected during an accurate time frame, what methods were used to preserve and collect ESI and if those methods were defensible.

This knowledge boosts your career because it teaches you how to troubleshoot technical issues, talk with key players and consider defensible methods of preservation and collection. In addition, it gives you a clearer sense of what resources are needed to adequately address the eDiscovery phase of a case.

Benefit.

Understanding operational considerations provides and opportunity to learn how to allocate resources and plan tasks with attention to the bottom line (i.e. if we collect N bytes of information from our client, we will spend X dollars in collecting, processing and hosting fees and Y dollars to review the information in Z time frame. Use the knowledge to set expectations with the judge and opposing counsel about the reasonable amount of time needed for certain tasks, inform your client about how much money it will cost to deal with the entire corpus of data and how many attorney hours will be needed to staff the project).

These skills also set you up to become an effective sales person for your services as a team leader on a case and ultimately generate sales of the firm’s services. Mastering this component of eDiscovery shows that you understand the business of providing legal services and this knowledge helps to shape you into a rainmaker.

3. Develop Leadership Skills
Career Skill Developed: Supervisory

Now that you understand where the ESI came from and what you want to do with it, it is time to execute an action plan. It is here that you have the chance to develop your supervisory skills.

Project Planning

Many document reviews in the discovery phase of a lawsuit are large and a team of attorneys are needed to analyze the data. Once you have differentiated yourself at the firm through your understanding of eDiscovery, you can begin to plan out the projects and direct all moving parts that must work together to reach completion. This skill is more operational in nature but it is a skill set that every firm needs to survive.

Benefit.

Those employees who have a vision for the work and can execute it are not only valuable firm citizens but they become the attorneys that client’s interact with most. You can get this leadership training through your understanding of eDiscovery.

4. Preserve Privilege Efficiently
Career Skills Developed: Advocacy
and Legal Research

One way to become indispensible at work is to take on a task no one else likes to do and do it really well. Many attorneys hate dealing with privilege logs and many clients hate having to pay for the detailed work that goes into them. But privilege logs are extremely important to a case and an accurate execution of the log is another step in protecting your client’s interest in a case.

If a team fails to preserve privilege properly, a judge may allow for subject matter waiver which could be the death toll for your client’s position. Your eDiscovery knowledge will prove useful in addressing this substantive area of law—maintaining privilege.

eDiscovery Provides Legal Framework.

Your understanding of eDiscovery law will provide the legal framework to build the privilege log and clawback agreements, to reduce the size of privilege logs, and to prepare your response related to techniques used for privilege log creation should a judge ever question it. Your understanding of ESI, the firm’s review software and Excel will allow you to efficiently create defensible privilege logs, as well as create formulas that speed up log creation and reduce the amount of money spent on privilege reviews in general so that you can preserve privilege in an efficient way.

Finally, as an eager associate, no skill you currently lack should be unworthy of your attention. If you don’t know how to use Excel, learn it. If you don’t understand how the review software works, get trained.

Benefits.

These are the tools that will help as you develop an ability to advocate for yourself within the firm about the value you bring to the team and to advocate for your client’s legal position regarding privilege concerns.

5. Work Smart
Career Skill Developed: Branding
Yourself as an Efficient Worker
With Technological Expertise

This step is also known as “emerging as the future of the firm.”

Understanding the eDiscovery process relies upon a basic understanding of technology. As a modern associate, it is not enough to have a legal education; rather, you must be able to work in the fast environment of a firm whose pace is often set by technology.

Leverage IT.

One resource you might use to develop this skill is your firm’s technology-focused employees (often working in litigation support roles) who can teach you about specific programs and software relevant to your practice area. Rather than trying to use brute force to keep up with the speed of legal practice, utilize your understanding of technology to not only execute tasks, but to do so more efficiently.

Consider TAR, Other Approaches.

The use of technology can lighten a young associate’s load. In the figurative sense, consider the use of technology assisted review (TAR). This is a hot new area of eDiscovery used in document review. When a case team receives large amounts of data for analysis, software programs can be used whereby legally trained employees teach computers what is relevant to the case. The software then uses that knowledge to cull through massive amounts of data quickly in minutes rather than days. It limits the workload to the ESI that matters most and discards the junk data that previously could have added hours and hours of time to a review. TAR reduces the amount of time an associate has to spend on a review which in turn reduces the bill for clients.

Apply Technology to Deposition Preparation.

In a literal sense, the use of technology can lighten the load of an associate. As a litigation associate, one labor intensive task you will be assigned is deposition preparation. This will build off of your skill as a fact marshal so that you can collate key facts in a comprehensive manner and share with the case team and deponents in preparation for depositions.

Historically, the end result of this task is a large binder containing potentially relevant and key documents. In the practical sense, binders are cumbersome to lug around and it is possible that in the entire history of depositions, a young associate has never actually been able to find that “one document where the defendant says X about Y” in the time frame in which the partner wanted that one document.

By using software like Adobe Acrobat Pro, an “e-binder” of those same relevant and key documents can be created. Then the PDF can be made text searchable and the once cumbersome binder will fit onto a thumb drive (encrypted, of course), which makes toting around the information a breeze and finding that one document feel like a Google exercise.

Benefits.

You have enough on your plate as a young associate; stop using a dull saw to cut through your body of work when all you need is a scalpel. Your understanding of technology can be used to brand yourself as an employee who understands where technology is headed and how to harness it for efficiency’s sake and the betterment of the firm.

Conclusion

If you are lucky enough to work at a firm that has been an early adapter of cultivating internal eDiscovery expertise by hiring specialized eDiscovery attorneys, team up with those attorneys on projects so that you can benefit from their knowledge as you grow your career.

If your firm is not there yet, you have the chance to shine by developing the five skills discussed in this article. Leveraging your understanding of eDiscovery will boost your career and help you, as a young associate, to become a better attorney in general.