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E-discovery arrives on attorneys’ to-do lists

Developing trends prove technology is impossible to ignore

Some Wisconsin attorneys have been too intimidated at the prospect of e-discovery to learn about it.

They’ve clung to the notion that e-discovery is just for big-firm lawyers in high-stakes cases.

“There’s a reluctance to deal with these questions,” said Tim Edwards, an attorney with Axley Brynelson LLP, Madison. “There’s also a learning curve.”

But failing to learn about e-discovery certainly won’t help attorneys, said Milwaukee lawyer Kelly Twigger, of ESI Attorneys LLC.

“Continuing to put your head in the sand and assuming that you can just ask for paper won’t work,” Twigger said, “because 99 percent of all information is created electronically.”

Now is the time for attorneys to bring themselves up to speed, Twigger and Edwards said, because there are trends developing in the legal community and state court e-discovery rules in place.

It’s not just for litigators anymore

Lawyers should be thinking carefully about how e-discovery could affect their practices.

For example, Twigger said, transactional lawyers conducting due diligence should consider whether there are any large e-discovery targets, such as sanctions motions.

Intellectual property lawyers who send and receive cease-and-desist letters, Twigger said, need to consider how close their clients are to commencing litigation and evaluate whether the letter triggers the duty to preserve electronically stored information versus sending out a written legal hold.

Likewise, divorce lawyers should consider e-discovery early on to target items such as bank statements that might only exist in electronic formats.

Meet-and-confers are becoming even more important

FRCP 26(f), as well as section 804.01(4m), require counsel meet to discuss the disclosure and discovery of electronically stored information.

Many lawyers are nonetheless serving discovery demands to each other without having met and conferred, Edwards said, because they’re unaware of the requirement.

“Meet-and-confers have always been meaningful,” he said. “But lawyers are starting to understand that if they don’t meet and confer in a thorough way up front, they are shooting themselves in the foot.”

In addition, as judges have become more sophisticated about e-discovery, parties are having an increasingly difficult time convincing judges that every single piece of metadata is needed in discovery, Twigger said.

“The parties really now are having to think on a much more sophisticated level about having a plan where they come to discuss with the other side what they need in the litigation,” she said. “You can’t just go into court and say, ‘Judge, we need everything because we don’t know how to narrow the focus.’”

Data is proliferating

The methods of creating and sharing data are multiplying, Edwards said.

Instant messaging has been around for years, yet many people still aren’t cognizant of the importance of preserving that data. Moreover, the rising use of tablets, smart phones and other mobile devices has resulted in more data.

“You need to think about preservation with them immediately,” Twigger said. “Mobile devices are so ubiquitous today, and a lot of business executives are moving to have corporate email on their mobile devices. How that is managed by organizations needs to be thoughtful.”

It’s not just email, which probably could be retrieved from the business’ server. Texting about company business also is commonplace, Twigger said.

Predictive coding has hit its stride

Predictive coding is the latest technology to improve review time and costs in e-discovery.

The technology takes a sample set of documents that have been reviewed and coded by a knowledgeable attorney and then applies the metrics of that review across the remainder of the document collection.

Like all technology, predictive coding programs have gotten cheaper, and there are more vendors entering the market.

Twigger said predictive coding used to be marketed just to lawyers litigating larger cases. That’s no longer true, especially with more companies offering customized versions, which could help lower the cost of e-discovery.

“The right service can be useful even for a small case,” Twigger said. “Their price points are based on the amount of data that you have, so it can be cost-effective to use it on a smaller scale. And it’s much more cost-effective than linear review.”

As predictive coding becomes more widespread, Edwards said, it’s only a matter of time before someone makes an inadvertent disclosure of privileged material, and courts will need to weigh in on how to proceed.

Cost-shifting also will be a topic for appellate review when parties cannot agree on the oversight and cost responsibility of predictive coding.

Stealth data is on the rise

Applications with geo-location abilities that track the location of someone possessing a mobile device, with or without his or her knowledge, could be the key to smoking-gun evidence, Twigger said. Mobile phones now can place people at the scene of a crime, for example.

All General Motors cars now are equipped with an OnStar GPS device, which not only tracks the location of the vehicle but also reports the speed and whether passengers are wearing seatbelts. The ramifications could be huge in personal injury cases.

Sanctions are becoming more common

A few years ago, sanctions were a relative rarity and only imposed in egregious cases, such as when great efforts were undertaken to wipe an entire hard drive of data that would be harmful to a case.

“Now we’re seeing sanctions for lawyers who aren’t instigating written legal holds for failing to preserve information early enough,” Twigger said. “These are very basic obligations.”

Also, safe harbors are becoming just a little more dangerous, she said. Rule 37(e) and section 804.12(4m) immunize a party from spoliation sanctions for electronically stored information that is destroyed as a result of routine business operations. Courts are beginning to hold that the safe harbor doesn’t apply if attorneys unreasonably delay issuing a litigation hold.

Correy Stephenson of Dolan Media Newswires also contributed to this report.

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