21st Century Trial Lawyer: E-discovery technology leveling the playing field in 2010

Issue February 2010 By Daniel K. Gelb, Esq. and Daniel B. Garrie, Esq.

Electronic discovery ("e-discovery") concerns the pre-trial discovery of electronically stored information ("ESI"). Twenty-first century civil and criminal litigators who fail to learn the rules applicable to this area of the law may expose their clients to evidentiary pitfalls and/or sanctions. Moreover, lawyers must also become conversant with the proliferation of technology pertaining to ESI. In fact, litigation is among the fastest growing segments in the information technology space, with spending on software and services rapidly nearing the billion-dollar mark.


Unfortunately, particularly in a struggling economy, both corporate and individual litigants are now being forced to confront the ultimate dilemma concerning e-discovery: compromising meritorious claims and/or defenses due to the burdens and expense of e-discovery. This should not be the case, nor does it have to be.

Technology has created more information for litigators to collect and review; however, at the same time, advancements in electronic data and document review tools are rapidly leveling the playing field. Large-volume discovery cases are increasingly becoming more manageable for law firms of all sizes, and for litigants with varying budgets. Notably, as vendors in this space enhance their services to meet e-discovery demands, litigators and their clients have available to them more capacity at lower costs. E-discovery, when effective teams are built, should not be viewed as a hurdle but rather an encouraging opportunity for law practices of all sizes that become state of the art to take on cases that historically may have been perceived as impossible due to capacity.


There are litigation requirements involved for parties to any dispute or those disputes that are reasonably anticipated and not filed. These litigation requirements include, but are not necessarily limited to, preservation of ESI, analysis and management of various formats of electronic evidence and its attendant meta data (e.g., properties associated with an electronic file), chain of custody reporting and protection of legal and statutorily privileged information are all of paramount concern. Importantly, unlike hard copy documents, ESI is volatile, contains hidden information (e.g., meta data), and is susceptible to being altered. Notably, corporations are responsible for their custodians of data, and must grapple with the fact that electronic evidence can be more challenging to maintain than other types of evidence.

A 2010 New Year's resolution for litigators should be to familiarize themselves with how technology can assist large volume discovery challenges to obtain the most capacity for the lowest costs. In order to achieve this goal, litigators should take advantage of professional development opportunities for e-discovery offered by the Massachusetts Bar Association, as well as relying upon the many educational resources which are available, such as The Sedona Conference ( and The Journal of Legal Technology & Risk Management ( In addition, it is very useful to consult Law Technology News' "Resource Guide" ( and other available industry reference Web sites to learn about the various e-discovery solutions and services.


E-discovery is not a mystery, and lawyers across Massachusetts and the country will be pleasantly surprised to realize that one can tackle most e-discovery challenges by doing the following: (1) leveraging the right resources (e.g., electronic document review tools); (2) determining where relevant information likely resides (e.g., laptops, desktops, network servers, online storage services, cell phones/PDA's, etc.); and (3) becoming conversant with how to properly retrieve the ESI (e.g., digital forensics expert, e-discovery consultant, etc.).

E-discovery technology is permitting counsel to focus on gathering relevant evidence and avoid the distraction of parties unnecessarily burying each other in large volumes of irrelevant information. Regardless of the size of a law practice, if approached correctly, e-discovery is manageable so long as counsel approaches it in the context of efficient trial practice. Working with an effective expert on early case assessment, and reasonably priced document review tools during litigation, will result in fewer documents to manage and less money being spent. The objective of e-discovery is to locate the subset of information for trial counsel so that the clients' cases can be most effectively advocated.