In a case over bad faith litigation and whether costs were recoverable, a Court recognized the importance of those who perform eDiscovery work. The crux of the issue is that clerical work is not a recoverable cost, while the work a paralegal does to support an attorney is recoverable. Would the work performed an eDiscovery professional be recoverable like a paralegal’s work?
United States District Court Judge James O Browning stated:
…while technology specialists’ duties are not strictly legal in the traditional sense, the Court believes that these technicians provide meaningful value to law firms and, ultimately, clients during litigation; those contributions should not go overlooked. In time past, young attorneys would select documents that paralegals would incorporate into specially created databases — e.g., “hot docs,” “Top 100 documents,” or documents specific to a particular witness or witnesses — and maintain them for the senior lawyers’ review. As technology developed, however, paralegals began uploading documents into databases which could then be searched and sorted using queries. Now so much is on ESI; the technology specialist helps produce documents and keep documents produced by other parties. These technology specialists now do some of the specialized work that paralegals used to do.
General Protecht Group v. Leviton Mfg. Co., 2015 U.S. Dist. LEXIS 109981, *95-96.
Judge Browning was just getting warmed up. The Court went on to say:
There is no sound reason to pay paralegals for document work in the 1980s and 1990s, but not technology specialists doing similar work in 2015 just because their job titles are different. The specialist is improving the quality of work product, and as a sensible approach, the case law should not penalize the practice in the legal community that is becoming more technology-based and efficient. Specialists may actually save money. Having a technology specialist for a single case is not unusual, and it can be more efficient sometimes to hire a specialist for a case than use a paralegal. To do otherwise would be to allow the case law to lag behind the introduction of document management products and databases in the twenty-first century. The proof that technology specialists are now doing legal work is that law firms hire technology specialist employees. Many years ago, few firms had paralegals; now it is the rare firm that does not have one or two. Forty years ago, few firms had specialists to manage documents; now, firms with twenty or more lawyers can justify hiring technology specialists for the job, and smaller firms may hire them on a contract basis. Today, when a client hires a law firm, it is hiring its paralegals as well as its technology specialists. When marketing their work, firms often quote their paralegal rates with their attorney rates. Document management is in great part what law firms do today, and clients expect to pay for that work. It is only fair for courts to follow the legal profession’s development of new means of providing high-quality representation and recognize technology specialists’ contributions as being legal in nature. The Court would therefore include technology specialist fees in its calculation of attorneys’ fees, subject to the same restrictions placed on other attorneys’ fees, i.e., that the technology specialists work pertained to the lawsuit at hand, and the hours were reasonable.
General Protecht Group, at *96-98, emphasis added.
Wow. Judge Browning gave one of the most practical descriptions on the value of having “technical specialists” help on the eDiscovery in a case. In the Northern District of California, this title could be “eDiscovery Liaison.” Some firms might even give this person titles such as “Director of Litigation Support” or “eDiscovery Counsel.”
Handling electronically stored information takes skill. Lawyers cannot upload self-collected PSTs from a client and review the data into Outlook. The data is likely corrupted from an indefensible collection. Moreover, using Outlook for document review is like crowbar for dentistry; it is not the intended use of the tool.
Attorneys need to understand how to identify relevant electronically stored information for preservation, develop defensible collection methodologies, and competently conduct review in a reasonable manner for everything from a reasonable inquiry to initial disclosures to production. Being able to execute a litigation workflow is not just required for defensibility, but the competent practice of law. Most lawyers require having someone assigned to manage these tasks under the attorney’s direction. Regardless of title, seeing a Judge state that “technical specialists” improve the quality of work product for efficiency is outstanding for the practice of law.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.