Reading the pulse of the industry Posted By Daniel Kaiser, Esq. on August 5, 2009
Open wide and say “ahh.” Um-hmm… interesting.
These days we seem to be surrounded by various pronouncements and diagnostics on the health of the economy. Sometimes these seem to be counter-intuitive. Consecutive months of increased spending (rising 0.5%) at the same time as a 1.3% fall in personal income? (Consumer spending rose again in June.) 
More people are filing first-time claims for unemployment benefits, but the trend is improving? Somehow I think the idea that “the pace of decline [has] moderated” can cut both ways.
This climate has certainly had an effect in the realm of law, litigation and legal services. Newspapers from China to the UK are running stories on the New York information technology graduate who is suing to recover her college tuition after finding herself unemployed. Within the industry itself, we’ve heard plenty of news and advice regarding law firm dissolution and downsizing, layoffs, and associate/staff furloughs. This news often seems to find its way around through rumors and speculation, but a fair amount of advice comes from the ABA itself.
In the world of eDiscovery, the truth is that for those who are willing to keep pace with the cutting edge of technology and the rapid evolution of the law, the opportunities to succeed are not-so-hidden. George Socha and Tom Gelbmann (of the Socha-Gelbmann Electronic Discovery Survey) have pointed out the growth and strength of new, creative and innovative Electronic Data Discovery (EDD) providers with “strong, scalable, sophisticated advanced search tools.” The industry is growing along with them. Survey participants expect the eDiscovery market to expand by “about 30% throughout 2009 and about 25% in 2010.” The continuing increase in the volume of data processed by eDiscovery providers would seem to substantiate these expectations.
Gifted programmers, project managers, and attorneys have been steering their careers in this direction for some time now, finding plenty of scope for career development. Law firms and corporations have also been eager to hire experienced EDD professionals, yet for all the demand and need, the workers seem to be few. Socha and Gelbmann’s survey participants perceive there to be “no more than 100 to 200 lawyers in the entire country [who] really ‘get’ EDD.”
In this industry, opportunities are no longer reserved for seniority. Court decisions are beginning to spring up around the country, to the accompaniment of rewritten portions of the Federal Rules of Civil Procedure. In contrast to the more glacial pace at which most areas of the law develop, the law, substance and methods of eDiscovery have been on a growth spurt – struggling (and in some cases failing) to keep up with an even more rapid development in electronic communications. In fact, a sobering picture of the court’s reaction when an attorney hasn’t kept pace with the latest developments can be seen clearly in Chen v. Dougherty, 2009 WL 1938961 (W.D. Wash. July 7, 2009). Referring to an experienced litigator’s failure to submit search terms, the court said that her “inhibited ability to participate meaningfully in electronic discovery tells the Court that she has novice skills in this area and cannot command the rate of experienced counsel.”
This application of emerging law to an ever-developing sea of potential discovery sources (from social networking engines to cloud-based platforms for applications and data storage) has placed the digitally-native generation at a double advantage: 1) Comfort with the technology through immersion in the amorphous world of electronic social networking, applications and electronic search procedures; and, 2) A rare opportunity to begin a career on something close to level ground (that is, more level than a junior associate’s usual starting position) when it comes to knowing the rules of the game.
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