|Commentary Authored by Stroz Friedberg Attorney Erin Nealy Cox and Published in Texas Lawyer newspaper |
E-Discovery Lessons of "Downton Abbey"
|April 16, 2012 11:59 pm|
An institution governed by convention, strict divisions of labor and a rigid decision-making hierarchy. A head of the house content to stay "upstairs" with little interest in the work being done "downstairs." Traditional ways on a collision course with seismic cultural change. Yes, that's a description of Masterpiece Classic's popular period drama "Downton Abbey," which just wrapped up its second season on PBS. But it could just as easily refer to a legal team handling the typical e-discovery litigation project.
When lawyers fail to adapt to the technological revolution and, for example, resist taking a direct role in e-discovery, they face the same challenges and fate as Downton's patriarch, Robert Crawley, the Lord of Grantham, who is stuck firmly in the Victorian era even while the world around him is changing irrevocably.
It's amusing for viewers to watch as Downton Abbey's Victorian aristocrats stubbornly resist the modern world and only grudgingly use a telephone. "Is this an instrument of communication or torture?" quips one member of the stiff-collared clan at the thought of using the phone.
Some face obsolescence with steely resolve, while others bravely negotiate great changes caused by the Great War and societal and economic shifts. It has been particularly painful to watch Lord Grantham's floundering attempts to maintain the status quo. "Before the war I believe my life had value," he laments. "I should like to feel that way again."
With the luxury of hindsight, viewers want to give Lord Grantham a little push and tell him to get with the times — to learn to use the phone or drive a car, for heaven's sake! It's ridiculous nowadays not to see the good that was brought about by electricity or communicating by telephone.
But many attorneys have their own head-in-the-sand mentality when it comes to the changing nature of law practice, particularly with respect to electronically stored information (ESI). Technology has forever altered how people and companies communicate, interact and transact business, triggering resulting shifts in the type of the evidence underlying every case. Lawyers must evolve, just like the aristocrats of "Downton Abbey," yet most still despise e-discovery and do their best to avoid taking a direct role in this critical phase of litigation.
This failure to adapt has led to an enormous disconnect between the typical lawyer in litigation and those who embrace the challenges brought about by the vast amount of electronic evidence. In the case of ESI, this hands-off approach has led to continued out-of-control costs, blunders, excuses and, perhaps most importantly, sanctions.
Clearly, change is difficult, especially when it means doing things in a new and radically different way. The comforts of the familiar are hard to cast aside. But e-discovery will not just go away. Attorneys cannot return to practicing law with manpower-intensive document production and review that requires scores of human eyeballs and a large chunk of billable hours in the form of attorney review time.
The attorneys who will flourish are those who recognize and master change. At Downton Abbey, the butler, Carson, is the only one who has a real grasp of the goings-on upstairs and with the staff downstairs. That's no surprise: He's the one who decides that it's important for his job security to figure out how to master the telephone. Attorneys who come to a similar decision regarding current changes in technology will survive. Left behind, like unbending Victorians, will be attorneys who leave the important e-discovery decisions to junior associates or farm the work out to a low-cost litigation support vendor, as if it were no different than a copy service. That's not what general counsel expect from law firms today.
The takeaway for all attorneys? Many lawyers have always taken comfort in the fact that the law is predictably slow to change — but that can't be said for e-discovery.
Copyright 2012. ALM Media Properties, LLC.
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