By Dennis Kiker
Recently, I remarked that e-discovery is a "complex, high-risk task that requires specialized skills and experience." So, the obvious question for purchasers of e-discovery services is, "How do I know that I am hiring a person with the right skills and experience?" And that is a very good question. It is fairly easy for someone to add e-discovery to their biography, or even to create a pretty solid-looking on-line profile by writing a lot. So, how can you be sure that they really have the expertise you need? When I hire a doctor, plumber or HVAC service person, I like to check their credentials to see whether they are certified. So, why doesn't the same apply to e-discovery? Well, dear reader, now you've opened a can of worms.
There has been a lot of buzz, positive and negative, about e-discovery certification (examples here, here, and here). One recent article caught my attention (and that of many others), maybe because of its catchy title, "Sham Exam?" and its well known author, Patrick Oot. There is no doubt that Patrick is knowledgeable about e-discovery. But, I do not entirely agree with his take on e-discovery certification. So, for what it is worth, I thought I would add my small voice to the din.
The article is obviously directed at the Association of Certified E-Discovery Specialists® (ACEDS) and its Certified E-Discovery Specialist (CEDS) exam. Now, let it be known that I have no connection with ACEDS, though I have spoken to Charles Intriago, its founder. I am also an active member of The Sedona Conference WG1 and a supporter of the Georgetown Law School e-discovery programs. So, in my own mind, at least, I think I can be fairly objective. Also, ACEDS soon will not be the only game in town. The Organization of Legal Professionals (OLP) recently announced that it will have its own certification program. And, other competitive offerings are out there that, while not offering certification, certainly hope to count as credentials, including the Ritter Academy and Ralph Losey's e-Discovery Team Training. But, since ACEDS is the article's target, and the criticisms are general enough to apply to other offerings in this space, let's talk about ACEDS.
The article first expresses discomfort with the idea that ACEDS is a for-profit organization. Maybe it is just the capitalist in me, but I don't share that discomfort. I, myself, am part of a for-profit enterprise, but I hope that clients still find my counsel and advice to be reliable. Besides, though there are some outstanding not-for-profit organizations offering educational and other resources in this space, let's not kid ourselves. The folks running those not-for-profits are not doing it for free. Perhaps there are no investors to compensate, but the executives and staff take home their paychecks. And I know from personal experience that the free materials provided by some of these organizations are less the products of altruism than of membership and conference fees. Mind you, I am not knocking any of them, and I know that a lot of good people donate lots of time without compensation to some of the programs and materials available. But the vast majority of us have a profit motive at the end of the day.
The article also complains that ACEDS targets "young, ambitious contract attorneys, paralegals, and litigation support professionals who are trying to better their career." Well, ACEDS targeted me, and, I can assure you, I am not young (though I am still ambitious). But, even if true, I think the response would be, "Of course they do." As far as I can tell, so do the bar associations, law schools and not-for-profit programs that Patrick references. Presumably, those are the folks that need the training and certification the most. Why would any group, for- or not-for-profit ignore its largest audience?
Next, the article questions the value of the certification because: (1) it is not offered by an accredited law school, and (2) attorneys often cannot hold themselves out as certified or specialized. I think the same challenges might be aimed at the overwhelming majority of CLE programs, but that doesn't reduce their value. What the certification offers that CLEs do not is an objective, proctored examination to test whether the students grasped a minimum baseline of information. I confess, I've gotten credit for a number of CLE programs in the past for which I might not have fared so well on a post-program examination, and I suspect I am not alone in that (which is probably one reason why Virginia recently limited the amount of CLE attorneys can get through non-live programming).
More importantly, these comments ignore a fact I've commented on several times: e-discovery is not just for lawyers. It is a multi-disciplinary enterprise requiring a broad range of skills of which legal expertise is only one - and maybe not even the most important one. The fact is that no number of hours in front of a judge will help you more effectively and efficiently identify, preserve and collect electronically stored information in the disparate information systems of a complex enterprise. Put another way, you can't argue the data out of a computer.
The last complaint I found objectionable is the statement that the ACEDS "advisory board [is] full of names you don't recognize." That board includes an adjust professor at the University of Florida who teaches a full-credit course on e-discovery, the chairman of the ABA's National Institute on E-Discovery, a former president of the ABA and chief privacy officer for a firm specializing in privacy protection, the Director of High Tech Investigations for Prudential Financial, an E-Discovery Program Manager for the IRS, a former Chief Justice of the Florida Supreme Court, and more. Though you might not recognize their names from the programs of the major yearly e-discovery programs many of us attend, their credentials are quite impressive. And, I don't think I am alone in thinking that the group of speakers featured at those major e-discovery programs is just a bit insular.
I will not suggest that a credential like ACEDS' CEDS designation is all that a consumer of e-discovery services or employer should look for. But it is a data point, and apparently one that companies such as Symantec and NuStar Energy thought important enough to warrant hiring preference. (The folks at ACEDS will be happy to provide you with copies of the job postings, if you are interested. The positions have apparently been filled.) For my part, I think that certification programs do the industry a service in beginning to establish benchmarks where today we have only CLE programs. So, have I taken the certification test yet? No, because, and here the article is right on point, it is a bit pricey. But I may yet, and, if I do, I plan to study for it.
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