The Legal Competency Missing from Legal Education: Law School Curricula and E-Discovery

If you had asked me in law school what area of law I hoped to practice, the answer would not have been E-Discovery. Frankly, I had no idea E-Discovery attorneys existed or awareness that E-Discovery was even a practice area then. The concept of E-Discovery was, at least, mentioned in my first year Civil Procedure class, but it certainly was not covered by a standalone course or discussed in any meaningful way that reflected the reality of how prevalent E-Discovery has become in the legal profession.

Prevalence of E-Discovery

As the amount of electronically stored information (“ESI”) continues to grow at an exponential rate, basic E-Discovery knowledge becomes increasingly essential for litigators and legal professionals alike across a variety of practice areas. And yet, it does not appear that law schools are keeping up with E-Discovery’s ever-growing consequence. While a handful of law schools do offer standalone E-Discovery courses, it is far from the norm.[1] Mere passing references to E-Discovery in higher education are inadequate to prepare future lawyers for the realities of the legal profession in this digital age.

In 2022, there were an estimated 333 billion e-mails sent every day.[2] Experts estimate that number will increase to 392.5 billion by 2026.[3] The estimated data consumption in 2021 was a staggering 74 zettabytes, and that figure is expected to double in 2024.[4] Just as the amount of data increases exponentially, so does the diversity of potential data sources—think new team communication tools, social media apps, the Internet of Things, the cloud, and emerging AI technologies to name a few. So too, the number of software and tools available to help lawyers process, review, and produce such large amounts of data continues to grow.

Given the increasingly tech-driven world we live in, it is no wonder that 40 states[5] have adopted Comment 8 to the ABA Model Rules of Professional Conduct that imposes an ethical duty of competence in technology.[6] Comment 8 to Rule 1.1 instructs the following: "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject."[7]

Duty of Technology Competence

Why then is this ethical duty of technology competence not more robustly reflected in law school curricula via E-Discovery courses? Most, if not all, civil cases will involve electronic discovery. Even criminal cases face increased pressures from E-Discovery demands.[8] E-Discovery is at the forefront of technology competency in the legal profession. E-Discovery processes are complex, given the sheer volume and diversity of available data, and there are technical intricacies of data management and retrieval that must be taken into consideration. From preservation and the data review process to document production and privilege considerations, the E-Discovery landscape is enormous.

At a minimum, basic E-Discovery principles should be more intertwined in standard law school courses like Civil Procedure. But even with that, there are too many critical areas of E-Discovery that new attorneys will undoubtedly encounter to relegate its instruction to passing mentions. These courses are not simply important for those intending to enter the E-Discovery field. Discovery is one of the most important aspects of a case—at least one of the most protracted aspects—and it is incumbent upon anyone entering the legal profession to have a base understanding of E-Discovery in practice.  

Conclusion

Recently, there has been much ado about AI and how this technology may one day replace lawyers. However, as one member of our profession aptly put it, “[t]he much more rapidly approaching threat to job security is that the lawyers who aren’t technically savvy will be replaced by those who are.”[9] While my alma mater now offers a standalone course in E-Discovery, law schools in general still have a long way to go. To truly prepare those entering the legal profession, law schools must begin offering more robust E-Discovery courses that will provide new attorneys with the foundational knowledge and skills necessary to navigate the E-Discovery landscape.