Electronic Discovery

Listen to this article

“They will probably create arguably more litigation than any new set of federal rules ever, because they are very vague and open to extreme interpretation.” Ross L. Kodner, President and CEO, MicroLaw

“It’s going to be really interesting after Dec. 1 to see what happens,” said attorney Ross L. Kodner who was not commenting on his expectations for the holiday shopping season.

Kodner, the president and CEO of Milwaukee-based MicroLaw, spoke on the upcoming revisions to the Federal Rules of Civil Procedure at the Wiscon-sin Solo & Small Firm Technology Conference on Nov. 16.

Joined by panel members Fredric Lederer, Chancellor Professor of Law at William & Mary Law School in Virginia; and Bruce N. Malter, Litigation Solutions Manager at Project Leadership Associates in Chicago, Kodner facilitated discussion on the effect revisions will have on electronic discovery.

Complex Solution

Adopted by the U.S. Supreme Court on April 12, 2006, and passed through Congress, the revisions are expected to provide a clearer path for attorney navigation through the world of e-discovery.

Mandatory addressing of e-discovery issues early in litigation, explaining procedure to clients and understanding how and when electronically stored information (ESI) is pertinent are all aspects addressed in the amended law.

While the trio of speakers at the conference agreed that the new laws were drafted with the best intentions of adapting to the technological climate related to law, the reality may be that the revisions may cause more headaches than a malfunctioning hard drive.

“They (the revisions) do provide some guidelines, but I think in the great scheme of things, they will probably create arguably more litigation than any new set of federal rules ever, because they are very vague and open to extreme interpretation,” said Kodner. “I think the intent was good, as this is an area where there needs to be structure, but the problem is that the rule makers, intentionally or unintentionally created a situation that will need to be decided by the courts.”

Lederer called the revisions a “fuzzy wine” which leaves a lot of room for mistakes to be made by unwitting attorneys.

“Now more than ever, you are seeing the merging of law and technology and most attorneys aren’t equipped to expertly handle both,” said Lederer who teaches a class at William & Mary on e-discovery and data seizures.

Call the Expert

The explosion of e-discovery related cases and ever-evolving technological innovations have doubled the amount of expertise needed by the average attorney. Materials presented at the session estimated that 97 percent of recorded information is created electronically and for many corporations, 80 percent exists solely in electronic forms.

Sifting through hundreds of emails or browsing numerous computer documents in search of potentially relevant case information is not a primary objective for most practitioners.

“The vast majority of attorneys don’t have and likely don’t want to have to deal with the level of technological expertise involved in e-discovery cases,” said attorney Bruce A. Olson of Davis & Kuelthau, S.C., in Green Bay. “I think you are going to see a rise in practitioners specializing in those kinds of cases.”

Olson has been a trial attorney for 25 years, has served as past chairman of the ABA TechShow and contributed to The Electronic Evidence and Discovery Handbook.

Kodner agreed with the assessment and believed that firms without an “in-house” expert will seek third-party counsel.

“I think we’re going to see lawyers carve out a whole new practice niche in intermediate discovery counsel and outsource discovery counsel that steps in and provides the technical wherewithal for law firms that just don’t have that expertise internally,” said Kodner.

For those unequipped attorneys who elect to fly solo, the consequences could be severe. Spoliation of evidence, intentional or unintentional, could result in financial sanctions, absence of vital evidence during trials, case dismissal and malpractice suits.

The price clients pay will be steep as well if an attorney does not seek
out the proper support prior to a trial, though corporations may have an easier time financing expertise than the average litigant.

“It makes it very complicated for consumer litigants who obviously can’t afford to hire another lawyer who is going to advise in discovery issues,” said Kodner.

Olson suggested that it is the attorney’s responsibility to seek out consultation on behalf of their client, rather than run the risk of making serious mistakes in the courtroom.

“Take a contested will case where there are three offspring vying for their father’s assets and one constantly emails the father to cut out the other two in his will,” said Olson. “The father’s computer would need to be obtained to look at the content of those emails and something like that may not be at the forefront of a lawyer’s conscious.”

Back to the Future

With less and less paper-based documentation available with each passing year, the ability of attorneys to adapt is a necessity.

“The concept of reasonably useable information is addressed in the revised law, but what exactly that means is anyone’s guess,” said Lederer. “Some information 30 or 40 years old is virtually unreadable at this point, which begs the question, what will we be able to use 30 or 40 years from today.”

Kodner suggested that all attorneys today can do is try and play catch-up with the technological aspects of law and be aware if its impact.

“This is not optional knowledge and whether you understand it or not is irrelevant, you have no choice and it’s only going to get more and more complicated,” said Kodner. “We’ll only have media that gets older and older and harder to access. What happens 30 years in the future when we have Star Trek-like holographic images? How do you ask someone to produce one of those, I mean who knows?”