By: Andrew Bartholomew
Few lawyers are more respected in the area of e-discovery than Ralph Losey. In addition to working as a partner at Jackson Lewis, he is a frequent blogger, writer and presenter on a host of e-discovery issues. Losey also teaches e-discovery courses at the University Of Florida College of Law. I recently had the privilege to speak with him as part of Exterro’s e-discovery podcast series. We covered a wide range of e-discovery topics and issues. This first recap (Part 1) focused on Losey’s passion for blogging, e-discovery education and proportionality as follows:
Bartholomew: How did you become so involved in this niche area of the law?
Losey: I went full-time e-discovery in 2006. I’m fortunate that my law firm went along with my crazy idea that I practice just in that area. I’ve been an avid computer user from the very beginning and have always been oriented towards technology. At the same, I’ve been a lawyer since 1980. For me, law and technology have always gone together. I know there are other lawyers out there who have been focusing on e-discovery since the late 90s, so I don’t consider myself one of the first. But I do consider myself the guy that writes a lot. That’s just what I enjoy to do. I write most every weekend a 3,000 or 4,000 word essay related to one of the many subjects in e-discovery and technology that interest me.Click the arrow to listen to the full interview now
Bartholomew: How did you come to be such a prolific blogger? Where most blogs just skim the surface, your E-Discovery Team blog really dives deep into the issues.
Losey: When I first started doing this in 2006, the blog posts were shorter and I didn’t provide a whole lot of analysis. I was mainly talking about new cases. But after doing this every week for five-and-a-half years now, it has become second nature. I find that my writing evolves as my own understanding evolves. I’m pretty opinionated at this point because I’ve been doing it so long. I have become the analysis and opinion guy in e-discovery. I don’t try to report on each new case that comes out. Occasionally, I’ll have someone send me an opinion say, for instance, from Judge Schiendlin right off the presses, and I like to rush out there and write something that’s kind of news oriented. But generally speaking I am more of an analysis and commentary kind of guy to help people think it through and share the experience of my being a lawyer for 32 years and being an avid technology person my whole life. Being there in the field, I see what’s going on. I know what the fights are in the courtrooms. Based on that, I have a lot of source material and information that comes my way. I’m doing analysis anyway as part of my job, so it’s not that hard to share it and write it up on my blog.
Bartholomew: You mentioned e-discovery case law. Are there any important case law trends that you’re following at the moment?
Losey: I came out a few months ago on my blog and went public with something I’ve been doing internally at my law firms and that’s bottom-line-driven proportional review. This is something we try to do every chance we get in every case to make sure that our production responses are proportional to the value of the case. It is my way of trying to control what I think is the primary problem in e-discovery today and that is runaway costs. It involves estimation and budgeting and figuring out what a project is going to cost before you actually begin. It seems like basic common sense but you’d be amazed. That is not the way things have been done in the past. There are still plenty of law firms around the country, if not the world, that begin production responses without a set budget or without having a clue what it’s going to cost them. We see examples of this in the case law almost every day. I’m now trying to promote this; just get the idea out there. Use your knowledge and experience about what things cost to make an estimate at the very beginning of the case of what is proportionate to spend on e-discovery. I call it bottom-line-driven proportional review. I want everybody to be making this argument. Who wouldn’t be in favor of proportionate expenses? Who wouldn’t be in favor of curtailing out of control e-discovery costs? Who wouldn’t be in favor of reasonability when it comes to e-discovery? There are some people that wouldn’t be in favor of it. These are the people I want to stop, the people that use e-discovery as a weapon, not as a valid tool to obtain the truth in order to decide cases.
This interview was recorded as part of Exterro’s e-discovery podcast series. You can access the full recorded conversation here