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PART II:Discoveringe-discoveryBY IAN FISHERIf Abraham Lincoln were to stepinto the offices of a modern lawfirm, chances are good he’d encountera familiar sight — youngassociates poring over reams oflegal papers.“We’ve been graduating peopleout of law school who are prepared topractice law in the 19th century,” said notede-discovery writer Ralph Losey, a shareholderat Akerman Senterfitt. “They’re preparedto work with Abe Lincoln, who had apartner and an associate. They went throughpapers, and they went to a trial courtroom.”Losey said technology is driving electronicdiscovery into the most rapidlyevolvingfield in the legal profession, butlaw schools and lawyers are behind thecurve in adapting. In general, law studentsare still trained to review a limited numberof documents and build a case around whatis given to them. That doesn’t bode wellfor efficient management of today’s cases,which can have millions of electronic documentsin a variety of formats that must bereviewed, Losey said.“You’re not trained to deal with 5 milliondocuments. Cases now — with just 10witnesses in a corporation — they’re goingto have millions of documents,” Losey said.“You cannot look at each document. That’sthe real world; it’s not the Abe Lincoln worldof just having a few paper documents.”Losey was one of a distinguished panelof experts who addressed the emerging importanceof electronic discovery during an“E-Discovery Evening” held Oct. 28 at UFwhich was co-sponsored by The SedonaConference ® and the Levin College of Law.“The Levin College of Law is one ofthe first law schools in the nation to offer acourse in what is being called ‘e-discovery,’”said Robert Jerry, dean and Levin Mabie andLevin professor of law. “We’re very pleasedthat, thanks to Adjunct Professor Bill Hamilton,we are also now the first to co-sponsora conference on the topic with the very wellrespectedSedona Conference.”Hamilton, a Holland & Knight e-discoveryexpert who organized the event, teachesan e-discovery class — one of the first in thecountry — at the Levin College of Law.Ralph Losey (right),e-discovery author, joinedProfessor Bill Hamilton(left) in his e-discoveryclass Oct. 28.E-Discovery=$13.5 millionin billings foroutside counselin one case alone.“The University of Florida should bevery excited about its leadership in thisarea,” said Hamilton, who serves as cochairof Holland & Knight’s e-discoveryteam. “Other law schools have got to stepup to the plate and teach electronic discoverybecause it’s a critical skill out there thatjudges are looking for. It’s almost a survivalskill at this point. That’s why The SedonaConference ® has come here in recognitionof Florida’s leadership in the e-discoveryeducation world for students.”E-Discovery Evening panelist PatrickOot, Verizon’s director of electronic discoveryand senior counsel,gave the example ofVerizon buying out MCIto illustrate how complicatedand expensive e-discoveryissues can be. Duringthe legal preparationfor the buy-out, more than2.4 million documents — 1.3 terabytesof data — were reviewed. This required115 attorneys at one firm doing privilegereview and 110 attorneys at another firmdoing timeline review. It took four monthswith attorneys working every day for 16hours a day to finish the review, Oot said,resulting in legal billings of $13.5 millionfor outside counsel alone.Oot recently read an article indicatingonly about 200 lawyers nationwide handlee-discovery issues well. Oot said thatnumber needs to grow quickly and thatadvances in technology will streamlineelectronic discovery in the future.“As our general counsel put it whenwe first started this [e-discovery] group,he said, ‘This is the only practice withinthe company that I actually see growing,’” Oot said. “Federal regulatory, litigation,antitrust, intellectual property — he seesthose groups shrinking where we’re hiringpeople all the time.”With the e-discovery field growing sorapidly, The Sedona Conference ® has beenat the forefront of establishing best practicesin the field. One aspect of e-discoveryThe Sedona Conference ® emphasizesis cooperation with opposing counsel ondiscovery issues.“You want to be adversarial, obviously,but at the same time, I don’t thinkyou want to be adversarial on the issuespertaining to what information is available,”said Joseph P. Guglielmo, a plaintiffe-discovery expert for Whaley, Drake& Kallas.Ken Withers, a distinguished e-discoverywriter with The Sedona Conference ® ,moderated the event. Withers said twoevents have heightenedthe importance of e-discovery.The first of thesewere the amendmentsin 1983 and 1993 to theFederal Rules of CivilProcedure to facilitategreater discovery. Theother driving factor in growing influenceof e-discovery is the desktop PC and theexponential increase and ease in accessinginformation the PC makes possible.“Discovery went from being a meansto an end — getting to trial — to being theend in and of itself,” he said. “The numberof cases that actually go to trial decreased,and it’s now less than 3 percent of all casesfiled… . The stakes of discovery werethereby raised.”All E-Discovery Evening speakersagreed that this is the future of discoveryand students should try to learn about it.“Be smart, look at where the futureis, look at the trend,” Losey said. “Thisis where the opportunity lies. Take thesecourses on e-discovery; learn about it. Nobodyelse in the firms you go to is going toknow anything about it, trust me… Thereare a few firms, but there are very few, sothis is a time of opportunity. You’ve got tostudy this stuff.”For more information about e-discoveryand The Sedona Conference ® , visit www.law.ufl.edu/news/events/ediscovery/. ■FALL 2008 37