An article by George Rudoy on the Georgetown Law site, which includes some input from me, reawakens the debate about certification of those who work in eDiscovery. Education on this subject was a key recommendation of the recent UK Jackson Report and I am (as you might expect) an enthusiast for it. Why am I against certification?
One of the key topics of 2009 in the US eDiscovery world was the extent to which it is desirable, helpful or necessary to establish a scheme for certification of those engaged in litigation support and eDiscovery. George Rudoy, Director of Global Practice Technology & Information Services at Shearman & Sterling LLP, is well-known for his role in practical education, and has just published an article whose title eDiscovery certification — reality or myth? implies that the subject is not as straightforward as one might hope. Who would argue against education of those engaged in the high-value and risk-fraught business of electronic discovery, or electronic disclosure as it is in the UK?
Certainly not George, nor me, since education in this area of practice is the raison d’être of the eDisclosure Information Project. There are at least three facets to the question, however, and they must be taken separately. The spread of knowledge, the question as to who provides the knowledge, and the need for an actual certificate each raises its own points.
The discussion takes different forms in the UK and in the US. In the UK, there is a fundamental need for lawyers engaged in document-heavy litigation, and for the judges who manage their cases, to understand better than they do the rules relating to disclosure of documents, the scale of the problems, and the broad types of technology which exist to manage the problems and to comply with the rules. Lord Justice Jackson’s final report included a clear recommendation about this (at paragraph 4.1(1) on page 374). That is preceded (at paragraph 2.2 on page 365) by an account of a demonstration which he saw (which I organised with help from Epiq, FTI and Autonomy) and by what he says in paragraph 2.8 on page 367 as to the submissions made to him about training and education (I recognize one of the phrases, which suggests that my submissions arrived)
In the US, the debate goes on at a more technical level, as one might expect – the industry is older and much larger, and mistakes bring expensive penalties in the form of sanctions in addition to the obvious commercial downside of getting things wrong. The doubts which George Rudoy sounds in his article concern, as he puts it “identifying a credible organization that would certify an individual as a specialist in the e-discovery field”. There is no shortage of people willing and able to provide the education, but it is a big step from that to the formal provision of a course of study, with the organisation and administration which that requires. His reservation attaches to the fear that the funding, and therefore the control, would become the preserve of an industry player whose interests would primarily be its own.
My own contribution to the article goes more to the distinction between education and the need for a piece of paper to show that you have been educated. I see it as a costly barrier to entry in an area which needs recruits (nursing is the obvious parallel in the UK) and as something which aims at the wrong target. It is not the litigation support people whose actions or inaction cause the problems, but the lawyers. On my argument, you do not reach the question as to who funds the certification because it is a misconceived notion.
I am, as you might guess, keen on the idea that all those involved in the subject should take part in passing on and evolving their knowledge – you might deduce this from the fact that the eDisclosure Information Project’s proclaimed purpose is to bring together lawyers, their clients, judges and suppliers with an interest in improving the management of electronic documents in litigation. By pooling the resources of suppliers objectively, we remove the commercial sting which would otherwise be unacceptable for the reasons which George gives. It allows me to call on a wide range of supplier skills to help illustrate what software and services are available, and to combine that with input from judges, lawyers and litigation support specialists from law firms.
There are many organisations in the US which offer education at a range of levels, whose work George Rudoy acknowledges. Some law schools offer courses whose quality, no doubt, marches in step with the overall quality of their other teaching. There are many first-rate conferences, organisations like Women in eDiscovery and sites like PivotalDiscovery, in addition to a host of web sites and blogs. Not least, there are readily-available case reports, attention to which would eradicate many of the most common errors. No-one can say that the resources are not available, and you do not need a certificate to show you were there.