Date:
Thursday, September 1, 2011
If Frank Gonnello is any indication, US law schools emphasize e-discovery with all the initiative and resources demanded of the complex realities of 21st century litigation. Of course, Gonnello, a third-year student at the Seton Hall University School of Law, is not an accurate indication, but instead something of an anomaly: one of the relative few who have had the opportunity to enroll in semester-length courses dedicated solely to e-discovery.
“I didn’t even know what e-discovery was until I entered law school,” said Gonnello, editor-in-chief of the “e-Lessons Learned” blog. “I only encountered one e-discovery case in first-year classes, and I think most students don’t really know what it is until they see it in the field.”
Gonnello, who earned a bachelor’s degree in computer science at Seton Hall University, got his first taste of e-discovery when he was asked to join the staff of the “E-Lessons Learned” blog during his first year of law school. The nationally-recognized site is a creation of Fernando Pinguelo, a partner at Norris McLaughlin & Marcus in New Jersey, and founder of one of the first academic e-discovery courses in the US. Pinguelo, who is also an adjunct professor at Seton Hall, began teaching a class in 2009 that Gonnello describes as a practical mix of hands-on technology education, case-law review, and training from respected names in the field. A typical two-week stretch may move from instruction on database management to presentations from the lawyers who worked on the landmark Zubulake e-discovery cases in New York City.
Pinguelo says he realized the need for the course while working on an e-discovery case in New Jersey in 2006, around the time the Federal Rules of Civil Procedure and some state court rules, including New Jersey's, were amended to include e-discovery requirements.
“I saw this as a serious issue in my cases as reliance on technology improved dramatically,” he says. “My course is about showing how e-discovery will impact daily life in the practice of law and how casual use of technology could have dire repercussions.”
Change is “slow going,” says lawyer and e-discovery professor
According to Shannon Capone Kirk, an attorney at Ropes & Gray and adjunct professor at Suffolk Law School in Boston, universities like Seton Hall are exceptions. While a number of organizations offer seminars or conferences, law schools generally have been slow to add full-semester courses to their curricula, and slower still to incorporate e-discovery into existing courses on civil procedure or criminal law.
“In my opinion, there’s no playbook on how to teach it,” says Kirk, who began teaching a semester-long course at Suffolk in spring 2011. “E-discovery is not necessarily the strict practice of law, but more about how to be a good liaison in litigation. And if you’re not doing it every day, it’s hard to explain all those nitty-gritty things that come up with vendors, IT and project management people.”
Kirk says law professors can’t teach such a rapidly-evolving subject from an “ivory tower.” Schools, instead, must hire practicing lawyers to serve as adjuncts in lieu of full-time professors. Still, finding time-strapped attorneys to teach a four-month class is only one reason why e-discovery hasn’t caught on in law schools as quickly as some had hoped.
Scarce resources, institutional knowledge hinder advance of e-discovery
Some argue that most tenured professors lack real-world e-discovery experience because the field is new; that introductory civil procedure courses are overstuffed with course material as it is; and that ever-changing case law and the technological complexities of e-discovery make course development difficult. Kirk adds that technology variables, in particular, create a large barrier.
“Across the board, there’s a huge dichotomy between students with a tech background and those without one,” she says. “Hard drives, email archives, data imaging – it sounds like gobbledygook to some.”
Attorney Joel Wuesthoff, who is a member of the E-discovery Services team of Robert Half Legal and has been teaching an e-discovery and computer forensics course as an adjunct professor at the University of Maine School of Law since 2006, says he doesn’t rely on a set core curriculum because of all these variables. He focuses less on case law -- selecting five to ten important cases -- and more on the “back and forth” process a trial laden with electronically stored information might entail. He has expanded his course recently to emphasize records management and document retention policies.
Handful of law schools set example on e-discovery education
Wuesthoff estimates that less than 20 law schools nationwide offer a semester-length e-discovery course, but says the number has gradually risen since he began teaching. Pinguelo similarly estimates that “about a dozen” such courses exist, adding that schools with traditional, theory-based curricula may be slower to incorporate innovative, skills-based programs that focus on e-discovery principles.
Attorney William Hamilton, a partner at Quarles & Brady in Tampa, and adjunct professor of e-discovery at the University of Florida Levin College of Law, suggests that impetus for change might come from the students themselves. (Mr. Hamilton is Chair of the ACEDS Advisory Board.) Both he and Pinguelo say they see more students coming back to school from part-time jobs and internships with a better understanding of e-discovery’s ubiquity and importance in the field.
E-discovery education and training gives law graduates more value, marketability
There is no consensus on how law schools should address their e-discovery shortcomings. Some suggest requiring courses. Others recommend electives or abridged clinics. The scope of suggested lesson plans varies as well, given the students’ varying degrees of technical expertise and an ongoing debate over which topics fall under e-discovery’s broad umbrella. As Kirk says, there is no “playbook.”
Regardless, professors and students agree that any improvements to the current environment will better prepare graduates for the real-world e-discovery challenges they’ll almost certainly face. Pinguelo says the legal market is much more attuned to the value of e-discovery skills than when he began teaching his e-discovery course, and his conversations with students like Gonnello only confirm this.
“My feelings about what I want to do after law school change almost daily,” Gonnello says. “But e-discovery applies to every field. My experiences with it will help me in whatever I choose to do.”
