Technology Hares and Legal Tortoises

I was at an after-work seminar this evening sponsored by Commonwealth Legal that featured the renowned Michael Arkfeld who is well-known in the litigation support community for being one of the (too few) lawyers who truly understand eDiscovery.

His presentation covered a number of points, mainly with a US focus, but one thing he touched on really jumped out at me. He was talking about the US Federal Rules of Civil Procedure, in particular Rule 26(b)(2)(B) which states "(a) party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost".

Now, many lawyers, when this rule first came out, took this to mean that there was no reason to worry about backup tapes any more. After all, we all know that backup tapes cost a small fortune to restore, index, get data off, and generally use for discovery purposes. But that was back in 2006. Since then, Index Engines has come out with technology that indexes tapes without having to go through all the pain and trouble of restoring them. (See here for an interesting blog post on their product).

In other words, Index Engine's technology has made reliance on some case law which specifies backup tapes as being "not reasonably accessible" a dangerous thing to do.

So this raises an obvious question. How can lawyers (who are rarely comfortable with technology anyway) hope to keep up with the fast pace of technology? For every problem that eDiscovery throws at the IT world (and legal professionals) someone will come up with some kind of solution to make it faster, cheaper and easier.

Michael Arkfeld's suggestion was to have some kind of eDiscovery technology clearing-house, which is not a bad idea, although perhaps difficult to implement. My suggestion, until Mr. Arkfeld gets his Technology Clearinghouse up and running, is to at least try to read industry publications (not just law firm technology publications - Information Week is also a surprisingly good source of eDiscovery trends from an IT perspective) and go to a trade show once in a while. LegalTech NY is probably the best for checking out who is doing what in the eDiscovery world.