The term e-discovery has been around long enough to have become part of the vernacular. But do you know as much as you think you do about electronic discovery?
According to experts, probably not.
“Most lawyers, I think, have to develop a basic understanding,” said Timothy Edwards, an attorney with Cullen Weston Pines & Bach LLP and former chairman of the electronic discovery and records management team at Axley Brynelson LLP, who speaks nationally about the issue.
Many believe the term e-discovery first popped up in the early 2000s. But it wasn’t until the employment discrimination case Zubulake v. UBS Warburg was heard a few years later in the Southern District of New York, and changes to the Federal Rules of Civil Procedure followed in 2006, that the concept really took off.
“Before those rules were changed, there was still e-discovery but a lot of people just didn’t think about it,” Jay Grenig, professor of law with Marquette University Law School, said.
“And it reminded people of some basic questions: It’s not a document if it’s on my computer? And the rules said, ‘No, it is a document, even if it doesn’t have four corners.’”
Since then, e-discovery has come to dominate commercial and patent cases, particularly in federal court, where litigation can involve millions of documents. And, while many states have caught up to the trend, including Wisconsin, which changed its own rules of civil procedure in 2011, many attorneys still find themselves less than informed about electronic issues.
“I think (the rule changes) got everybody on their toes a little bit about how important this issue was and was going to be.” Edwards said. But, as he explained, “… with the growing trend there’s a learning curve, and a lot of lawyers were very reluctant to try to learn this information because of the technology. But they’ve slowly realized that you really have no choice.
“If you’re going to litigate you have to develop at least a basic conversational level knowledge of electronic discovery.”
The more you know
If attendance at Edwards’ seminars is any indication, attorneys have taken note. During the past 15 years, he said, audiences have swelled from a paltry half dozen to 80-plus.
“It’s because people are scared,” Edwards said. “They know that if they don’t understand this and another lawyer does, they’ll lose. It’s gamesmanship and, frankly, some lawyers are using this to drive up settlements.”
For Edwards, any discussion of e-discovery starts with embracing the digital process.
“The biggest misconception about e-discovery,” he said, “is that lawyers can take their old approach to discovery and superimpose it into the world of electronic data. It’s not just as easy as going and pulling documents out of a box like it used to be.”
“There are no more filing cabinets,” he said. “More than 95 percent of all records are digital; for business it’s close to 100 percent. All of my records, except for some diplomas, all my tax records, everything has been digitized. And my stuff is backed up in at least four locations.”
That’s because e-discovery is as much about document retention as it is about the digital format. In fact, Edwards said, not understanding preservation obligations and not properly conveying those obligations to clients are the most common mistakes in handling electronic discovery.
“Everything can be traced back to your failure to intercede at the beginning of the case,” he said. “… If you don’t preserve data or produce data responsive to a discovery request and it can’t be found later, it can directly dictate the outcome of a case on the merits.
“Judges will sanction lawyers who don’t produce evidence they should have kept. Judges will sanction lawyers who have been ordered to produce information and did not.”
Lawyers also need to understand, Edwards said, that electronic discovery does not work unless there is cooperation in the meet and confer process.
“Lawyers must work together,” he said. “That’s in the federal rules and it’s required by the state rules as well.”
Drafting targeted discovery requests also is important, since the wide net of vague and all-encompassing requests – once standard in a paper-based world – can result in myriad useless documents; not to mention the huge bill that goes along with coordinating and producing those documents.
“In big cases where there’s a lot of data,” Edwards said, “lawyers need to know when to think about nonconventional options for reviewing the information.”
One of the most popular ways of doing that is through search items, specific words that search through a database en masse. There’s also predictive coding, which allows computers to virtually think within a set of search parameters.
“When you have a million documents,” Edwards said, “that becomes very important.”
When it comes to e-discovery, lawyers also need to think beyond personal computers, Grenig said.
“What about the black boxes in the Toyotas for sudden acceleration? It tells you how fast they were going and where they were with GPS,” he said. “The smartphones have all sorts of information; a certain golfer’s wife learned about his misdeeds because his girlfriends were calling his smartphone.
“What about surveillance cameras? I don’t think anything can happen in public without it being recorded. There are so many ways the digital world is invading. (Electronic discovery) comes from everywhere.”
And it sticks around.
“With a piece of paper, you have to consciously wad it up, burn it, shred it, whatever,” Grenig said. “With electronic discovery, even if you trash an email, it’s still there. Even if you empty the trash, a forensic person can find it.”
Which is why Edwards and Grenig advise attorneys to be particularly careful about smartphones, social media and Internet-based email providers such as Google.
“You should think about, when you send things, that someone is listening,” Grenig said. “It could be Google, it could be the government. … All these other gadgets where there is evidence left behind, you should always think that whatever you’re putting out there could be used as exhibit A. You’ve got to be careful.”
Even something as seemingly innocuous as forwarding an email can compromise privilege, which is why Grenig recommends adding a confidential header to all emails with instructions that the communication should not be forwarded.
At the end of the day, Edwards said, don’t be afraid to ask for help.
“If a case involves a lot of e-discovery and documents for review and preservation, they should really, really step back and evaluate whether they’re competent to handle that,” he advised firms. “And I don’t mean legally competent, I mean having the structural wherewithal to deal with the situation. …You have to understand your limits. It can be dangerous to pretend that you understand.”