December 11, 2006
Preservation, recovery and production of electronic documents increasingly consume attorney time, litigation budgets and in-house counsel resources. We are “pack rats" when it comes to electronic documents. According to a University of California-Berkeley study, 92 percent of all new information created in 2002 was stored in electronic form.
Further, the burden of dealing with electronic documents is eclipsed by the risk associated with failure to properly preserve and produce them. A 2005 study by Kaahn Consulting and AIIM found that while 99 percent of businesses use e-mail, only 39 percent had a formal e-mail retention policy. These tendencies will create significant issues in litigation.
There are hundreds of legal and practical concerns in this area. Listed below are 10 that in-house counsel should consider:
10. Sedona is more than a nice place in the desert. As lawyers and judges become more familiar with electronic documents, we are standardizing terms and conventions. The Sedona Conference has addressed e-discovery and provides excellent resource materials on this topic at www.sedonaconference.org.
9. Electronic Documents Never Really Disappear. Unless a hard drive has been destroyed, a forensic expert can likely recover virtually any document from it. Before engaging in a duel of forensic experts, litigants must be aware of the documents hiding on old hard drives.
8. The document that fell behind the copier. Dealing with electronic documents requires traditional lawyering skills. E-docs may be lurking on PCs, thumb drives, servers and other locations. Finding these documents can be the equivalent of locating the document that fell behind the copier. Counsel must thoroughly interview custodians; learn information system architecture; and identify custodian storage devices (portable media, PDAs and the like) and all applicable servers and mapping.
7. Now – Not Later. In many federal courts and a growing number of state courts, counsel are obliged to obtain and exchange information about electronic documents. Some federal courts currently require exchange of such information (see Electronic Discovery Guidelines at www.ksd.uscourts.gov), and effective December 1, when amendments to the Federal Rules of Civil Procedure become effective, all federal courts will require this exchange. E-discovery issues will arise in the first weeks of litigation.
6. Keep the focus on the merits of the case. Failure to properly address electronic discovery issues is a trap for the unwary, and can change the focus of the litigation from the merits to the manner in which the litigation is conducted. To avoid this trap, or to spring it on an opponent, deal with these issues at the outset of any case. Determine custodians. Search electronic records. Negotiate with opposing parties for realistic e-discovery agreements. And most importantly, deal forthrightly with the court.
5. Paper and Electronics. Should you digitize your paper collections and request that your opponent do the same? Paper documents still need to be collected, managed, reviewed and produced. In many cases, the most convenient and cost-effective way to manage paper is to digitize it. When converted to an electronic format, paper and electronic document collections can be combined into a single database, number-stamped, reviewed and produced seamlessly. This approach is not without its cost.
4. Do-It-Yourself Electronic Discovery - To Vend or Not to Vend Although your in-house IT department may have the capacity to collect documents for the client, does it have the focus and experience necessary to preserve the chain of custody, protect metadata and provide testimony regarding the document collection process? Probably not. In most cases, a law firm that has experience in e-discovery has one or more document review platforms that are adequate for document review and can utilize search terms to locate discoverable information. To avoid spoliation claims, assure document integrity, protect metadata and provide testimony by affidavit or otherwise, a vendor can be useful in collecting electronic documents. In certain cases, vendors may also provide document review platforms, sophisticated programming, decryption, forensics and other services.
3. RFPs Sedona has an excellent RFP template available for download on its Web site. However, in many cases devotion to the form RFP results in killing an ant with a sledgehammer. Use the example as a guide, not a mandatory form. A trimmed-down version of an RFP and close work with vendors is adequate to reach the desired result.
2. Apples and Oranges Although Sedona has identified numerous best practices regarding e-discovery, there is no standard basis of comparison for vendor pricing models. Vendor technology, methodology and pricing strategy vary widely. In reviewing vendor proposals, the customer must develop criteria to compare services. In addition, all pricing models should be converted to a standard unit of measure – per gigabyte price or per page price.
1. What about the other guys? Opposing parties should negotiate reasonable rules of engagement to avoid the electronic data equivalent of mutually assured destruction. We have negotiated agreed-to protocols that ultimately are entered as orders. The following issues are typically addressed:
- Paper and electronic collections,
- Exchange of basic system data,
- Discovery of back up and archival data,
- A common document production format,
- Methods to deal with native format documents,
- Document marking,
- Privilege,
- Databases,
- Redaction and
- Dispute resolution.
For now, although these are just 10 things you need to know and consider concerning e-discovery and electronic documents, they can help you approach one of the biggest issues in 21st century litigation.
Rick Bien is chair of the Litigation Division at Lathrop & Gage L.C. He may be reached at (816) 460-5520 or [email protected].