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.
THE E-DISCOVERY DILEMMA
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.
LITIGATION REQUIREMENTS
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 (www.thesedonaconference.org) and The
Journal of Legal Technology & Risk Management (www.ltrm.org). In
addition, it is very useful to consult Law Technology
News' "Resource Guide" (www.ltnresourceguide.com) and other available
industry reference Web sites to learn about the various e-discovery
solutions and services.
NOT DIFFICULT TO TACKLE
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.