E-discovery demands attention from attorneys and clients (AC06)

Issue May 2006 By Ann Karpenski, Esq.

Ready or not, electronic discovery is here to stay, and attorneys have to be ready for it, according to a panel at AC06. Attorney John J. Coughlin of Duane Morris LLP in Hamilton, N.J., said that by December 2006, the Federal Rules of Civil Procedure will be amended to take into account e-discovery, and state courts won't be far behind.

Coughlin explained that it's time for attorneys to educate their clients, as well as themselves, on the inner workings of e-discovery because the nature of evidence is changing.

Citing the core cases of Zubulake v. UBS Warburg, Coleman Holdings v. Morgan Stanley and U.S. v. Philip Morris, where failure to properly handle electronic discovery led to billion dollar verdicts, he explained that there are valuable lessons to be learned and shared with clients. Of utmost importance is sitting down with clients and developing, or reviewing, a document retention policy. Know about "metadata" (data about data) and explain it to clients, because adversaries can potentially have access to all of it, he said.

Attorney Shannon Capone Kirk of Ungaretti & Harris LLP of Chicago expounded by explaining new methodologies of e-discovery. She detailed e-discovery trends and explained the importance of hold orders and preservation of documents. Speaking from practical experience, she suggested using care when sending interrogatories and requests for production of documents to opponents.

"Inevitably, your client will get the same ones back," she said. She also suggested taking cost-control measures. E-discovery can be very costly, particularly due to a developing phenomenon she referred to "discovery on discovery," when discovery becomes so big it emerges as a secondary case within your primary case. "Don't be afraid to go to court and get an order limiting what your adversary can get."

Likewise, attorneys sometimes have to help clients decide whether to keep data collection, data processing, data storage and discovery matters in-house or sent out to a third-party vendor. Michael E. Boris of LexisNexis explained how an e-discovery specialist can be helpful in all of those areas.

As Coughlin said, "this is a wake up call. If you don't get educated about e-discovery now, in two years, both you and your client will be in serious trouble."