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Why Lawyers Hate E-Discovery

Via EDD Update, I was directed to an epic post by lawyer and electronic discovery guru Ralph Losey, entitled Plato's Cave: Why most lawyers love paper and hate e-discovery and what this means for legal education. Losey begins with the allegory of Plato's Cave, the story of prisoners who have been held captive in a cave all of their lives. They can only see shadows on the wall and come to believe that the shadows are people and objects. One of the prisoners escapes from the cave and discovers that shadows are merely illusory, and people are real. But when the prisoner is returned to the cave and tries to share his new knowledge with the other cave dwellers, they don't believe him and he is ridiculed, because life in the cave is all they've known.

Losey says the allegory works for lawyers, too. Growing up reading paper books and educated on paper in law school, lawyers come to fear e-discovery because it is a new world, just as life outside the cave was for the cave dwellers. As Losey puts it:

Just like the prisoners in Plato's Cave, [lawyers] do not know that their beloved papers are shadows, mere print outs of a greater electronic reality.

In practice, lawyers sometimes cling to paper even to the detriment of their clients. In one recent case, Bray & Gillespie v. Lexington Insurance Co., 2009 WL 2407754 (M.D.Fla. August 3, 2009), plaintiff's lawyers' lack of familiarity with electronic record keeping resulted in severe sanctions. The plaintiff had been ordered to produce guest records from a hotel, but did not realize that the records could be accessed electronically. So, the plaintiff's paper lawyers only looked for these records in warehouses full of papers, and made selective disclosures which were eventually discovered. But as Losey points out, the entire matter could have been avoided simply by producing the records electronically -- though plaintiff's lawyers did not seem to realize that was possible.

Because many lawyers don't understand e-discovery, they criticize it as too expensive or a passing trend. They're threatened by it, so they remain entrenched in their ways.

Because law schools rely so heavily on the use of paper in teaching, Losey believes that the only solution is to train lawyers online to make them more comfortable with computers and e-discovery. And he's hopeful for future generations, which will come of age in an online world.

Is Losey's assessment accurate? Are lawyers still afraid of electronic discovery and records management? Or is the next generation of lawyers leading the profession out of the cave and into the light?

Posted by Carolyn Elefant on August 19, 2009 at 02:55 PM | Permalink | Comments (1)


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