NeLI PodTom O'Connor on 40 Years of Litigation Support, Hurricane Katrina and Teaching the Next Generation
Listen on Apple Podcasts Listen on SpotifyAbout this episode
Tom O'Connor has spent more than 40 years helping lawyers handle evidence, from banker's boxes and Bates stamps to every format a phone can produce. After Hurricane Katrina he co-founded the Gulf Coast Legal Technology Center in New Orleans to help the legal community rebuild. He wrote the ABA's guide to Summation and eDiscovery for small cases, eDiscovery for the Rest of Us and AI for the Rest of Us, and spent years on the road with the late Browning Marean of DLA Piper. Daniel Gold, who first met Tom over CourtLink around 2007, and Brandon Mack talk with him about what disasters teach the profession, what he learned from Browning, who owns the gap in technology education for young lawyers, and how to prepare for what is coming.
What we covered
- How he and Daniel met over CourtLink, and what legal technology looked like then
- What Hurricane Katrina changed in how lawyers thought about their records
- What lawyers valued most while recovering from that disaster
- Lessons from working alongside Browning Marean that still apply
- What litigation support people see about cases that many attorneys never do
- Who owns the failure when new lawyers graduate without knowing how discovery works
- The one thing he would teach the next generation of attorneys
Full transcript
Transcript of the published episode, edited for transcription errors, with speaker labels added by Gold Standard Leadership.
And welcome back to another episode of NeLI Pod, the official podcast for the National eDiscovery Leadership Institute. And today, our guest has been doing litigation support since the banker boxes and Bates stamps were the whole job. Tom O'Connor has spent more than 40 years helping lawyers. Handle evidence first on paper and now in every format a phone can literally produce. And Tom and I met somewhere around 2007, 2008. We're actually not very sure when exactly we first met, but it was roughly around that point. And back then.
Grounded in the clouds of history, right?
That's exactly right. It was in the clouds of history. And, uh, and back then, back then, I was responsible for selling CourtLink, among other tools at LexisNexis, and we ended up in this coffee shop, and I found out that the two of us had CourtLink in common. And that conversation started a friendship that, frankly, I have literally valued ever since. And after Hurricane Katrina, Tom co-founded the Gulf Coast Legal Technology Center in New Orleans to help a legal community rebuild. And he has done quite a number of things, including wrote the ABA's guide on Summation and eDiscovery for small cases. He wrote eDiscovery for the Rest of Us. Last year, he released yet another book called AI for the Rest of Us. He was the first recipient of both the Betsy Ann Reynolds Award and the Scarpitti Award.
And Tom also spent years on the road with the late Browning Marean, who was senior counsel at DLA Piper. And also one of the earliest eDiscovery lawyers. I had a photograph of his face and a quote that he had in many CLEs, uh, years and years ago. Uh, and together. Both Tom and Browning were pushing law schools to take eDiscovery seriously before most of them even understood it. And through that educational experience, they also created and co-host the eDiscovery channel on YouTube. Craig Ball took over and now also Tom hosts with Rocky Messing. I happen to have been a guest on one of those shows and I was actually very delighted about that. The Masters Conference created the Browning Marean Award for Outside Counsel. And every December on eDiscovery Day, EDRM presents the Gail O'Connor Spirit Award, which is named after Tom's late wife, Gail.
To someone who brings this community together. Whew, Tom, that's a lot. You have done…
Well, that's all we have time for. Thanks for coming in, folks.
Thanks for coming in. Your bio just took up all the time on the air. So, Tom, you know, I love to say that I'm excited to have somebody sit in the virtual recording studio with Brandon and I.
That's right. That's right.
But I have to say, like, I am just… it is truly an honor to have you come to NeLI Pod and talk with us, because there's so much that we want to dig into. Uh, so thank you and welcome.
Oh, my pleasure. Thanks for having me. You know, I love talking about myself, so there we go. It's a perfect, perfect marriage. I'm also glad that you pointed out that we met years ago in New Orleans in a coffee shop.
It's perfect. It's perfect. Well. That's right.
Which in and of itself is unusual that we didn't meet in a bar, which is…
Well, what I didn't say was, we ended up at the bar later, like, we spent that much time in the coffee shop together, we ended up at the bar later.
Yeah.
The usual nexus of people connecting.
Because what else do you do in New Orleans? Um…
You know, you eat great food, you listen to great music. If you drink, you drink 24/7 because the bars are open 24/7. And well, we used to say we watch good football. That's kind of fallen off the table recently.
Of course.
Okay. That's right. That's right.
8, 4, 7.
Out.
It'll come back.
But we still enjoy ourselves watching football.
It'll come back. Don't worry.
Oh, boy. Yeah.
You know, a fun story about the jazz in New Orleans.
Yep.
Long ago, when Brandon and I worked together, well over a decade ago. I was sitting in a bar with one of our colleagues, a jazz bar with one of our colleagues, listening, and I was not drunk on alcohol, but drunk on listening to the music. I was so in love. with listening that I was inspired to write a blog post back then. Brandon, I don't know if you remember this one, but it was basically how jazz music is like eDiscovery. And, and so I wrote this whole thing about how everyone has to be in harmony now, everyone has to be in sync. And when, when it's going and you've got like the right rhythm together.
Perfect.
Hmm. Okay.
Man, you're just flowing. You're not even like, you know, hitting the keys. It's just, it's like magic coming out of the instruments. And the same thing I had likened the eDiscovery and maybe perhaps when I wrote that I was drinking a couple of bourbons, but who knows? Who knows?
Thank you.
Might have, yeah, a little bit more, yeah.
You were just trying to ride on the coolness of jazz, try to make your discovery a little bit more cool. I'll take it.
Who knows?
That's right.
I know, I know, I know. I fell in love with New Orleans. So, you know, Tom, let me ask, you know, when we first talked.
Okay.
Way back when, when we first met. You know, and we're talking pre-show about this as well, we're talking about… What we were doing from going to a courthouse and literally pulling court dockets and documents out to be able to see it, to all of a sudden, in the early days of the internet. we're able to actually, like, search and find this. And we think about this in 2026, and it's like, well, that's so stupid, everybody could do that, right? But it's not, because nobody did it. The internet was new, like you were talking about, so… Did you have… Any idea what was going to happen next in the world of legal technology?
Oh, God, no. I mean, you know, I'd love to say, oh, yes, I saw it all coming. For some reason, I was having visions of the letters A and I. I don't know what it was, but it kept appearing in front of me. You know, if I had been that prescient, we'd be having this discussion from my house in Aruba, if we were having it at all.
That's right. That's right.
No, you know, I think that's, you know, it's not just that things escalated, but you know, well, two things. We mentioned this earlier. First of all, there was great resistance on the part of attorneys to not having their documents under their immediate control, paper or electronic. There was no sense of trusting the internet for those sorts of things. That changed a bit down here after Hurricane Katrina as people realized the advantage of having hosted documents offsite someplace when you couldn't get to. Your office because it was unavailable for weeks if not months so that slowly changed. And we started to think about that. But the other thing is things happen so fast. I mean, I, you know, I teach courses to paralegals sometimes, and I say, you know, if I stand in a room with, you know.
boards, you know, I was gonna say blackboards, really showing my age, uh, whiteboards all the way around the room, and I draw a straight line from behind me, and I just draw it all the way around. I said, if you start back here, and you go all the way to about 10,000 years ago. That's like nothing. That's us trying to get from being tadpoles to, you know, something that can get up on the ground and walk around. And then it takes, you know, another couple thousand years for humans to get agriculture. Right? And tools. Like, we're just trying to, like, wow, we're gonna do something here. And then several thousand years past that, before we're doing language, and writing, and some rudimentary math.
Mm, mm.
Uh, uh, you know, counting of some sorts. Um, you know, you look at the development of history, and we go to, like, 1660, and, and calculus is invented. You know, Isaac Newton, you know. precocious little 19-year-old child wizard, you know, trying to explain how the… Planets circle around the sun and vice versa. The only way he can do it is he has to invent calculus to do it. And then of course, Rene Descartes takes it another level. All right, 1600s. Then you go to the 1700s and Ben Franklin's out there flying a kite. We got electricity. Okay, so that's 100 years. And then you go to the 1800s, oh, we get the steam engine, the industrial revolution, blah, blah, blah, blah. You see where I'm going.
1900s, we got, you know, jet engines at the end of World War II. uh, rocket ships and big computers. Um, uh, by 58, uh, the Russians launch Sputnik, and that spurs our Defense Department to start ARPANET. Right? And really start investing in communications and then. You know, let's fast forward to the to the 80s and the PC when all of that stuff comes off of. Big iron onto our desktops, okay? And, you know, it's incrementally smaller timeframes of this stuff improving to the point where it's like, wow, you know, how long has ChatGPT been around? Two years? Right? And I thought, I think Doug Austin said the other day, we get something like 2000 Gen AI products in our space alone. that have been generated in the last two years.
This is all happening so fast, so fast, so fast. It's baffling to people like myself who, I mean, I didn't go to law school because I was a math whiz, okay? Let's face it, you know? My skills lay in reading, writing, and not arithmetic. And, you know. I think it was, I forget, there was a judge who said it back at about the time we were talking, Daniel. I think it might have been Monty Aholt in Maryland, who was also involved in the early days of CourtLink. And he said, you know, we're the only profession. We work by looking in the rear view mirror. We want precedent. We don't want to be out in front of the car. We want to see what's behind us.
So, you know, those are the two things that I think have really stood out to me is things change so fast. now in the technology world. And we as a profession are not built for fast. Right? We just aren't. Our institutions aren't, our way of study isn't, our way of education isn't, our way of working isn't. And so we've lagged behind for those reasons. So no, back when we were first talking about this, I couldn't possibly have envisioned. But things were going to develop as fast as they have now. Not in a million years. Not in 20 years. You know?
Tom, you mentioned in that answer, you mentioned Hurricane Katrina and the change in how lawyers looked at their records. All of a sudden you have groups of lawyers in the city who can't get their hands on anything that they didn't have backed up. When you saw, I think we often see disasters like that create sort of cultural change, even within an industry like we're looking at here within law.
Yeah.
What did you learn about lawyers and where their values actually are about? whether it's their work product or their clients or their work. What did you find that they found most valuable having to deal with that disaster?
Well, I think in New Orleans, in Greater New Orleans, not just the city, but, you know, Jefferson Parish and the other parishes around us, the Greater New Orleans area, we came to. you know, litigators are cowboys. Litigators are, you know, they love John Wayne movies, man. They love Clint Eastwood. Um, they came instead to learn a little bit more of what later. In the federal rules, you know, came forward into the cooperation doctrine, right? We need to cooperate more. That doesn't mean we can't be strident advocates for our clients, but we need to work together to solve some of these problems. So I think there was a. A much better sense of that down here. It wasn't just my documents, it was the court's documents.
And part of that was they saw that the federal courts who had, of course, started to become very computerized already. That they were able to take the dockets from the federal courts, I'm just using New Orleans, the ones right here in the city as an example, and transfer to those, and I forget where it was, whether it was Nashville or Houston or whatever, but they could switch all those documents. to databases in another city. And it was like, oh, the light went on like, oh, oh, now I see what these guys have been talking about. You know, the documents are still secure. The courts have made them secure. It's not like they just got them sitting on the front steps and, hey, come look through these boxes and find your documents.
It's just that they use a computer in Houston, you know, or Little Rock or wherever. Nashville, instead of here, until they could get the computers here working. And so that interconnectivity, that cooperation, if you will, came to the forefront. And we saw the rise of that in the local bar associations. And just attorneys working with one another. So it wasn't even a technology thing. It was a cooperation thing. We got to help each other. You know, I saw, well, I'm actually right now, I've got some space for my good friends at DocuSource here. Um, you may have… Daniel, you must have known Connie Nichols, um, from Summation… from the Summation days. Yeah, it was her company, and, um, Drew Golitz. grew up here and had been working in Tampa for years, bought it from her at the beginning of the year.
But we're at 201 St. Charles. Two blocks off of Canal Street. you know, I don't know how many stories, 35, 40 stories. You know, I know guys who had to walk up 25 stories to get their servers. Right? Because the servers, of course, weren't flooded. They were still there, but there was no power. So they could get the data, they just had to get up there. And so what I saw was people from different firms helping each other. do that. That's no mean feat, walking up 25 flights of stairs in 90-degree weather and 95% humidity. So you saw people helping each other. to do that sort of thing. It wasn't just rebuilding the city, it was rebuilding our profession. The folks at the New Orleans Bar Association stood up a server for people to log into.
And get information about what was going on. Just find out what was going on. And it was those sorts of things with people helping each other that really stood out to me. Technology assisted that, but that was the… Again, that was the switch that flipped is, oh. We can cooperate and technology's a tool that will help us do that. And we can find inventive ways to do that. Helena Henderson, the… Then president, she's retiring this year as the chief executive at the New Orleans Bar was instrumental in saying, I think she set the first one up in her own home. We're going to set up a server, put it out there on the internet. You can log in and basically a glorified listserv.
Okay.
Come in and find out information about what's going on. So, yeah, I think that was really instrumental, and then it pushed more technology down the road that we started talking about, you know. databases online, storing our data online, having, uh, uh, you know, document management, everything, everything's online now, document management systems. You know, Outlook, M365, whatever. But…
You know, but, but, but it, it wasn't, it wasn't like that though. You, you know, the, the, this transition, you know, it's so interesting because. I was there so often, and I lived through this, and you're right, there was a very large hesitancy about, like, I have to be able to touch it, feel it, right? I don't want to put it in the cloud. So I remember that transition, that pendulum literally shifting. year after year after year after Katrina. was this idea, because I remember meeting with a lot of partners there, and they were like, no, if I can't see my data, even if it's in this box inside of a server room. then I don't trust it anymore. And you know what's interesting, Tom, also, is that I remember a lot of firms in both Baton Rouge, as well as New Orleans, where a server closet was literally a small broom closet.
with wires everywhere, and backup tapes, and what have you. It was a disaster.
Yeah. Oh, yeah.
But you touched on something I didn't think I was going to talk about, but I want to because it's so important. cooperation proclamation that the Sedona Conference put out, I believe it was in 2010, right? And… And it's funny because I mentioned that in CLEs that I used to give, I had the cooperation proclamation on one slide and quite literally Browning Marean's face, and I quote from him on a second slide right after that, basically akin to the idea of that we need to work with one another.
Sure.
I. I find this really striking that one of the things that we do as lawyers is that we have very interesting. Uh, nomenclature, right? He, you know, she is my adversary, you know, and we need to go to oral arguments and we need to, you know, make sure that we are, you know, the, you know, these, uh, uh, zealous advocates.
My grief in opposition.
Right. But, right. But then, remember, the late Judge Waxy, right, who, by the way, was here in Kansas, um, you remember what he said, which was that, that.
Right?
Yeah.
Zealous advocacy has no place in Rule 1.1. Right? And because he believed also, very similar, that we should all be working toward, you know, a resolution, a Justin Speedy resolution, without all of this hubbub, where we're just… spending more money, and spending more money to have discovery upon discovery, and I'm wondering, when you worked with Browning.
Yeah.
What did he understand about this profession that we still, to this day, haven't caught up to? And what do you keep with you when you have conversations today with clients that you learned from Browning?
Well, I used to say to Browning, it's funny 'cause we were both from New England. He was, if ever there were polar opposites, it was us. Steadfast conservative from the the North Shore, the the conservative element, shall we say, of the of the Boston area. I was a Irish working class guy from the South Shore and the you know. the blue-collar neighborhoods, and, um, and, uh, Republican, Democrat, Catholic, Protestant, you know, we were… the thing we had in common was we both loved Bob and Ray. And we used to just laugh hysterically about Bob and Ray. And so I said to him one day. Do you miss not being in trial? you know, now you're a consultant, really, you're an advisor, you're the eDiscovery expert.
Do you miss trial work? And he goes, well, he said, I miss. the camaraderie. He said, I missed the coffee shop across from the courthouse. at 7:30 AM talking to all the guys who were gonna, you know, were on call that day and we were gonna walk across and, and he said, every, every courthouse in America has a little coffee shop across the street. And you go there at 7:30, 8 o'clock and all the trial attorneys are there talking to one another. And they all know each other. And he said, I miss that. What I don't miss… Is what has changed is and he said some of this comes from our clients. Some of this is society has changed. It's no longer enough to win an argument, a motion, a hearing, a case.
Now, it seems more and more. My opponent wants to… Burn my village to the ground, spread salt on the ground, disperse the, you know, the people everywhere. They want annihilation. They don't just want to win something, they want to annihilate me. And he said, and that spread into the into the legal professions too. And he welcomed the cooperation proclamation to counter that. He said, you know, cooperation doesn't mean capitulation. It just means we're cooperating to move things forward in an efficient manner that makes the court cases move more speedily through the system. Um, so, and, and it's funny, because I did a CLE here, uh, on Wednesday with, uh, uh, Chris Rawson, who's a big local practitioner. He's, he's actually just. Joined and is the managing partner of Spencer Fain, opened an office here in New Orleans, and Chris took over.
And at one point, he turned to the people we were talking. He said, you know, I was talking about something. I said, you know, that's the reason I like. speaking with Tom. You know, Tom's a lawyer, but he can explain this stuff in terms that we can all understand. He's like a translator. And I think that's part of the thing. You know, we get caught up in this technology and there's too much jargon that makes it easier to not cooperate. You know, I'm asking for more. Positronic thrusters, and they're just giving me, you know… more dilithium crystals. I don't know what's going on here, Your Honor. And so, yeah, we need to get back to the fact. To that point of, um… I'm not saying we should be all buddy-buddy.
You want to exactly be zealous, but you want to be an advocate in the sense of. following the rules and proceeding in the way that the rules lay out. You know, and making sure that you ask for you identify what you have, you ask for what they have, we come to an agreement about exchanging this stuff. That doesn't mean you're rolling over for anybody. It just means you're trying to make the process go smoothly. The process goes smoothly. Let the chips fall where they may. So, I just… I always just remember Browning as a very down-to-earth. Explain this in terms that line from Philadelphia that Denzel Washington said, right? Explain this to me like I'm a five-year-old. Right? Which is kind of a paraphrase, I'm sure they stole it from… there was a statement by Albert Einstein once who said, if you can't explain what you're doing to somebody in 25 words or less that they can easily understand, then you don't know what you're doing.
Right.
And I thought, okay, that's it. That's what we should be doing. Don't get caught up in the jargon. And it's just so easy these days. You know, AI's ramped it up to a whole other level. Now there's a whole new level of technology that we gotta deal with. So I always bring Browning. I think of the guy constantly. I have a picture of him on my desk, and I just think about, you know, explain this to me like I'm a 5-year-old. Right? Don't make this difficult. You know, let's get… let's get to the common ground here. And if you don't… if you can't agree, that's okay. That's okay, you don't have to just throw in the towel, then you go to the court. Look, we got 10 things that we're talking about here, we've agreed on 7, we're still kind of arguing about another 2, and there's one where we're just… we're nowhere, so we need your help.
Okay. That's what we should do.
Tom, I wanted to ask you about the earlier years of your career. To remind the audience, you started out as a paralegal in Baltimore and worked your way through law school while you were doing that. And as a paralegal, you see a different angle of a matter of a case than the attorneys who are the Barrett's counsel on the cases themselves.
Yeah. Yeah. Yeah.
sort of, I've heard it described as sort of, uh, bottom-up versus top-down view of what's going on in the case. So, in those early years.
I like to think of it as the person who's doing all the work, but that's just me.
That's a valid way to put it as well. But in those early years, what do you think that angle that you got to see that many attorneys never get to see, you know, starting out as attorneys, what do you think you saw or learned about how cases work that many attorneys never get a chance to really see firsthand?
Well, and it's been amplified because of the technology and the explosion of the amount of data. You were there in the trenches. It's a truism. It's a, you know, it's easy to say, but you're there, you know, with the documents. You're the one.
Yep. Mmhm.
who's going to look at the documents, who receives the documents. Back in the good old days, you're the one who's bait-stamping the documents, you know, and then you're supervising the scanning. And the numbering and the unitizing. So you're the one who's really getting a basic understanding of what the documents are in a case. Now that's harder and harder the more and more documents we get on big cases. But even on small cases, you know, as you know, I still have an affinity for, you know, eDiscovery for the rest of us. What's it like for the small cases that don't have big budgets? But even small firms now. get hit with tons of data. Um, you know, 500 gigabytes a day to 600 gigabytes a day.
Remember the good old days, Daniel, when, you know, you had floppy drives that were really big, and you had maybe a whopping 2 megabytes of RAM on a…
I know, I know. Now the memes and the gifs actually are more than what you could store on one of those floppy disks.
Yeah, yeah. Somebody… we were talking to somebody here the other day, and the guy goes, well, you know, it's 500 gigabytes, that's…
Yeah.
That's a whole lot of data. And I said, that's like a medium sized mailbox. That's not a whole lot of data. You know, come on, you take it, take a look at what you've got in these things. So but I think from the position of the paralegals.
That's right.
You're looking at it from the people who are there in the trenches. dealing with the document productions. I think, you know, there, of course, there are other paralegals doing other things, and, you know, we're talking now about litigation with a lot of documents in them. The paralegals are the ones who have to deal with that. And figure out how to categorize, how to unitize, you know, what program are we going to use? I have to decide whether, you know, do I use summation or do I use concordance? Oh, now do I use relativity? Do I use reveal? You know, what am I? What am I going to do here? And so the onus is on them to kind of answer those questions for the attorneys because, you know.
Attorneys aren't getting taught any of that in law school. With one or two exceptions, it's still the vast technology wasteland out there. I remember, I probably told this story before, but Brownie and I, when we were going around to some law schools trying to… Convince them to teach some technology courses. And we had an agenda. We had a prospect level bond. We were at a major law school. I won't say what it was. And the dean, of course, is long gone by now. But we made this pitch. about we should be training them on this sort of technology. And the dean's response was, well, that's all very interesting, but we train architects, not carpenters. And it was the most angry I've ever seen Browning. I thought he was going to leap across the table and rip the guy's throat out.
He used to talk about, you may have heard of Daniel, he used to talk about when he lost his temper, his evil twin Skippy. used to come to the surface. You know, he was a Navy guy. He had served in the Navy. He said, yeah, Ensign Skippy is about to make an appearance. And Skippy was right there at the surface that day. And, and, and, but, but. There's some truth to that in that paralegals are the car, you know, you don't build a building without the carpenters. Right, yeah, you need architects to draw the plans together, but, you know, the building doesn't go up if you don't have a good carpenter's union. And plumbers and electricians and concrete people and steel workers and, you know, you need all of those people.
And that's, man, I was talking to somebody the other day about the Rolling Stones had a song years ago called. The salt of the earth. Let's drink to the hard-working people. Let's drink to… The humble… And that's, man, those are paralegals, man. They're out there doing the Lord's work.
Thanks.
You know, when I finished clerking, I clerked for a judge in New Jersey, and as I'm about walking out the door, one of the clerks who's also paralegal says to me, Daniel, if you want to be successful. as a lawyer, can I give you some tips? And I said, sure, of course, right? And she was a clerk that I worked a lot with. She says to me, never piss us off. And she said, always be nice, or we will mysteriously lose your motion for summary judgment. So, yeah, you're 100% right. It's interesting that — what filing? You didn't give us anything, Daniel.
Well, filing, yeah.
You talk about what that Dean said about, you know, we're training architects, not carpenters. Man, that upsets me also. And you're right, there are just a few schools. Brandon actually is an adjunct professor at one law school, and so I know Brandon is educating young legal minds.
Yep. Yeah.
The University of Missouri Kansas City Law School that actually is the funder for NeLI, they actually teach eDiscovery and obviously I know KU does as well in Florida, et cetera. So there are schools that do it, but it's so funny to me that it's just. 20 some odd years we've been doing, quote unquote, doing eDiscovery, and there are still so many law schools across the country that will not teach like an actual tactical, here's how eDiscovery works, like here's the rules. I mean, this is what we do in law school. Here's the rules, let's apply the rules to the technology, right? And I've had this conversation a thousand times that, you know. Yeah.
It's really, it's really irritating. In fact, you just said something. Well, you said something that's really irritating, which is Brandon's an adjunct professor, right? I mean, the majority of these programs that are being taught, they're adjunct professors. They're not even full-time faculty. It's not considered worthy of full-time. There's, you know, University of Florida course with Bill Hamilton.
Yeah, you're right.
Mm-hmm.
Certainly the leader in that. Northeastern, Chicago, Kent. Those are the three that pop to the top. But yeah, you know, you're right. Why aren't we teaching this? And it's what's really interesting is, you know, West and Lexus really. Kinda got their foot in the door by teaching legal research.
Correct. Correct. That's right.
Years ago, right? I'm surprised that more. vendors. I know Relativity has got a very aggressive, um, legal education program. Janice Hallman and, and, and, and, um. Bye. I'm spacing on his name now. I just talked to him this morning. But, they're, you know, they're being aggressive about that, but it's I don't know what the resistance is. I get called in sometimes from some people here, at either Loyola or Tulane. I'll get called in by somebody who's teaching civil procedure.
Right.
And they'll have me come in and do an afternoon on eDiscovery.
Correct. Right, right. Yep.
And I thank you. You know, and I'm thinking, wow, I hope you folks follow up on this. David Horrigan is the name I think of.
Yeah. Oh, David's wonderful. Well, David's been, David's been preaching the, the eDiscovery for, for a long time and I, I love David very much. I had a good fortune to your point before. I had a good fortune for, I think it was, I had a five year straight.
Yeah.
Right? Yes. Yeah.
there's a professor at KU who had me come in, you know, for a guest lecture to talk about what it's like on the service provider side, right? Here's what you as the young lawyers need to know about working with service providers.
Mmhm.
So, it bothers me also, it bothers Brandon, uh, and I'm curious, when young lawyers graduate, and they get into the practice, and they have literally no idea how any of this. works, who owns that failure?
Well… You know, I guess. if I can quote the… quote the Rolling Stones again, all the cops are criminals and all the sinners saints. Um, you know, don't we all, to some degree? I mean, are we putting pressure on our bar associations to… to make this mandatory? You know, we've got the… the ABA passed a model rule of technical competence, which. Basically says you should know how to use an 8-track tape, as best as I can tell. 40 states have put it into effect in one way or another, but how can you tell me it's an ethical obligation to do something when you're not also. providing me with training. You know, I know it's an ethical obligation to learn the rule against perpetuities. So they teach that to me in law school, which is meaningless.
But you're telling me I have an ethical obligation to understand technology and, you know, and another musical analogy, Paul Butterfield, right? I'm just drifting and drifting. Like a ship out on the sea, you know, so whose responsibility is it? I say it's the community. We need to provide more education. We need to provide more means of providing this. If the bar associations won't do it, and some of them do, Florida and California have been. Very aggressive in doing this and saying what the standards are. California says, here's the standards for, you know, eDiscovery technical competence. You know, then maybe we all have to do it. I just started a.
Thank you.
With several other people down here, including the folks at DocuSource, we're going to do a one-day technology conference on April 7th next year. Not eDiscovery, not AI. We're going to talk about technology and some of the basics. You need to go. What I'd like to do is set the basis for a resource or a think tank where people can go to that is not linked to a specific technology and just say, here's the things you should learn about. We're going to have a session on ethical obligations. We'll have a session on back office, we'll have a session on data, of course, you have to. But, you know, we've… I think the onus is on us in the profession to step up and provide that education.
Um, and I do think. that. Judges are really going to start driving. AI has started to get judges involved. There's been a woman's judges conference going on right now in New Orleans. There have been several judges conferences in the last couple of months where the judges are getting together and going. Yeah, we need to come up with some standards amongst ourselves to say, here's what you guys should be doing. Um, and so, uh, you know, I'm mostly dismayed that law schools and bar associations have not been more overtly aggressive. in doing this. I do think that judicial involvement is gonna drive a lot of that. You know, everybody listens to judges. You're right.
Well, Tom, not to put you on the spot, but on that topic, if you were put in charge, you're the eDiscovery education czar for the bars all across the United States. What does the program look like to you? Is it sufficient for it to be a portion of the curriculum for Civ Pro? Or do we need a separate eDiscovery track? Would it be at the law school level or would it be at the bar association level? What do you think is the perfect solution?
No. Well, I think ideally it would be at the law school level. That's where we educate attorneys, right? It's an educational question. So why isn't it there? So here's what I think it would look like. And I got a great example because back before COVID, I was fortunate enough to be involved with a great.
Okay.
faculty of people at Georgetown University Law School. And every summer, the first week of June-ish, between the end of the spring semester and the beginning of the fall semester, we did a week-long eDiscovery course. Again, it was through the CLE department. But it was Judge Fasciola was the leader. Craig Ball was one of the leaders. For a while, we had Mike Arkfeld speaking. We had Maura Grossman speaking. We had four or five of the top people. in the field, coming in and giving their perspectives. Judge Fasciola, of course, would get other judges to come and do, you know, an hour or so, but we didn't… Four days. I mean, they came in on Sunday. We went through Thursday and it was like all day long.
It was intense. Um, and… and so it started off with… it wasn't just civil procedure. Craig Ball really hammered on the technology. Here's how computers work. Somebody said to him, why do I have to know about this stuff? And he said, because that's where the evidence is. Right? You need to know how computers store data, because that's where the evidence is, and that's where the evidence gets spoliated, or altered, or hidden, or changed. And so we start right off with that basic. Here's how computers work. And we go through that. And then, OK, now here's how the rules have come into play. Then here's how databases work. Here's some different types of databases. And the last day would be a mock meet and confer. Divvy up all the students.
They'd be on either side of a meet and confer where we would get a sitting judge. We got great buy-in from judges in the DC area to come in. And of course, that doesn't happen in a real meet and confer, but they would sit there and listen. Did both sides argue with each other? And did they learn what they were supposed to talk about? Did they learn what the rules of civil procedure said they were supposed to talk about? And did they understand native documents? As Craig said, do they understand what the headers on these files are? Do they understand what metadata is? They need to know that. And then the judges would give a critique. Um, and we'd have a follow-up on that at the end of the day.
So it was a very much a… From the beginning, how the computer works when you hit the keys, and that platter is spinning around, what's going on there, all the way to, and now you're in a meet and confer saying, what's on that platter that you've got? Where have you got it? Where is that platter?
Mm-hmm.
So, I mean, yeah, I don't think you can scrimp on this. I think it needs to be — Craig Ball teaches a full course at the University of Texas one semester. I believe it's usually in the spring. But that's what you need. You need somebody who's going to be there every week for the 12, 16, however many weeks it is, and teach a course, not just a special guest lecture on the civil procedure class. That's good. It's better than nothing, but you need to get into the weeds with this stuff. You need to understand electric data, electronic data, how it's created, how it's stored, how it's retrieved, and then the different rules. And of course now AI has just ramped all that up. You know, what's going on with AI, the different ways of, and not to mention, you know, we've got.
We've got teams, we've got, you know, disappearing text files, we've got loop documents, we've got… it's turning into a Stephen King universe of quantum mechanics and parallel universes, like, where is all this data, and what are we doing with it? So, yeah, the short answer to your question, Brandon, it needs to be a real course. An actual course over. A semester or. as we did at Georgetown, if you don't have that, 4 or 5 days. in a row, sitting in that lecture hall. You know, we had the big lecture hall at Georgetown. We usually had 60, 65. We cap it around 65 students, so it wouldn't get too unwieldy, and you know, you… What's the old saying, you're coming to learn, brother, you better pack a lunch, because, you know, we're going to be here for a while.
But I think that's what it takes. That's what it takes.
Yep.
When you look back at the, you know, 40 years you've been doing this. I like to think that you've… people in general learn a lot more from their failures than they do from their successes. And you have had a lot of successes, Tom, a lot of successes over the years. You've written all these books, etc. What was one of the biggest failures that you had that. Changed. The way you do what you do.
Whoa, that's a great question. What was the biggest setback? Well, I think all of us is, you know, in the course of a case, have a motion denied. We're not going to let you do that. Well, you know, those documents are not going to come in, or that objection is not going to come in. But I would say. My biggest failure was not necessarily on a case. I always felt a sense of failure. And Craig and I used to argue about this all the time. Craig, at the beginning of our Georgetown course, would give a skills test to everybody. And just 30, 40 random questions about what's metadata, what's a positronic thruster or whatever. And then at the end, he'd give a test, an outgoing test, and he would like to reward the top.
you know, 3, 4 students who scored the best. And I used to say to him, you know, I think we should give an award to the person who had the lowest score and the biggest improvement.
Yep.
Right? Somebody who came in and had a 75 or an 80, and went up to 90, that's great. That's great, and now they scored a 90. But what about the person who came in and scored a 40, and now they've got a 74? Okay. Isn't that a more dramatic change? And, and so. My biggest failure I always felt was if there were people who went through the course and didn't get it. that I felt at the end of the course, they were still struggling. You know, did we… did we not get it across? What was our teaching failure in… in getting folks to learn this? Um, and I would always, you know, if we identified some of those.
Hmm. Okay.
I would always try to follow up with them and, you know, a month later or so, say, you know, what's going on here? What didn't we get to you? What did you need to learn that we didn't make clear? What can I do to follow up and help? But I would think, I come from a family of educators. My dad was a big athlete in high school. His senior year was Pearl Harbor. And we used to laugh and the family used to laugh. Instead of going to South Bend, he ended up in the South Pacific. And then he came home, went to school, GI Bill, became a teacher.
Okay.
And so I grew up in an educational family. A couple of my uncles were also teachers and they all became principals of schools. My sister went to law school but then became a school administrator. She just retired as the administrator of a school system in Connecticut. And I think my failures are when I don't, the ones I feel the most are when I don't. when I'm not successful teaching something. And I remember dealing with, you know, with our son. Gail and I have a son who's, he now works for Array. He's a hosting manager. He says, now I understand why you and mom like to work at home.
Hmm.
I get up in the morning and I get my coffee and I put my bunny slippers on and I walk 20 feet to work. I said, yeah, but you've got the willpower. Not everybody can do that. You can do that. But same thing with him. When he was younger, I was a coach. Like many fathers, I coached him in little leagues.
Yeah.
And I remember learning those lessons. Am I explaining this? Again, Denzel, explain this to me like I'm a five-year-old. Am I explaining this in terms that somebody can comprehend, whether it's hitting a baseball, catching a football? Loading data into a load file or running a good query to find data, you know, am I teaching? in a way that they can learn. The failure to learn is as much my responsibility as it is the students. So those are the failures that I still think about.
Well, Tom, we started out this conversation at the beginning of the podcast talking about how quickly technology is advancing now. Speed up even more than what we've seen over the last 20 years in the industry. The next generation of attorneys is going to have an incredible learning curve to manage. So in that that spirit of teaching, if you had one thing that you would give to that next generation of attorneys, what do they need to learn?
Yeah.
that you've learned, so they don't have to go through some of those trials that you did with the way that the technology has accelerated during your career. What would you tell them they need to do to be prepared?
Well, I think the first thing in learning anything, especially something, let's be candid again, that is as alien to lawyers as science and math.
Mm-hmm.
Right? That's not our sweet spot. First thing is be patient. Okay? Computer systems and scientific systems and math principles are all very straightforward. There's no hidden tricks, there's no gotchas the way that we can use in language and the way we write and speak. and talk to influence a jury. You know, in the scientific world, things are very straightforward. You just have to learn what the principles are. So, be patient. Okay, the the. the X-Files, right? The answer's out there somewhere, um, um, if you just stick with it. Um, and then the second thing I would say is, um. Find somebody to learn from. You know, we all need a mentor. I had great mentors. You know, the old Isaac Newton. I look so far because I stood on the shoulders of giants.
You know, I look back at people like Browning and… Uh, you know, I had several other mentor mentors, uh, in, in the business. Uh, Jim Kane, who was a big, uh, big mentor of mine in the early days of the ABA Tech Show. Um, you know, these were people who. I could learn from and had blazed the trail who had done some of that learning. I don't have to reinvent the wheel. Um, so find those people and learn from them. Um, but, uh, and then I think that's the last thing is. To the point of it's changing constantly. There are no experts, man. Somebody gets up in a room and says, I'm an expert in eDiscovery, run away. Be afraid, Will Robinson, be very afraid.
There are no experts, man. This stuff changes so fast. You know, there's people with expertise.
Mmhm.
When anybody says who they know everything about all this stuff, that's not the person you want to be talking to.
Yep.
You want to find somebody who's got a little bit of humility and say, you know, let's find the answer. Here's the answers I found, and here's how this may help you, but going forward, we're going to kind of be in this together. And let's do that. So find those people.
Tom, uh… I can't even express to you how delighted Brandon and I are to talk to you about this. You know, you brought us both down memory lane, very far down memory lane, and uh… and it's…
It's really interesting, isn't it? I mean, I think it was Mike Arkvold said a long time ago, this is a really great time to be alive because for the first time, it's the intersection of the use of law and technology. Yeah, we've had technology on the fringe before.
It is.
this is where law and technology are cutting across each other and blending together and making changes to affect each other. He said, really, it's a fascinating time. If you choose to go down this particular road to be an attorney and to understand these things and to see the changes that are happening, not just in our profession, but in society at large. So yeah, my pleasure. You can tell I hate talking about this stuff.
Mmhm.
Thank you.
Well, Tom, thanks so much for joining us on NeLI Pod. We really appreciate it.
My pleasure. Happy to speak anytime. Thanks for having me.
Daniel Gold is an attorney and a Principal at BDO USA, where he leads eDiscovery managed services. He co-hosts the NeLI Pod with Brandon Mack for the National eDiscovery Leadership Institute, hosts BDO's Legal Tech Talk and founded Gold Standard Leadership.
More about DanielGet the next one in your inbox
Daniel Gold writes weekly on leadership, legal technology and eDiscovery.
Subscribe on Substack