July 07, 2006

Preservation, recovery and production of electronic documents increasingly consume attorney time, litigation budgets and in-house counsel resources. Our “pack rat approach” to dealing with electronic documents has expanded litigant searches for “smoking gun” evidence. Further, the burden of dealing with electronic documents is eclipsed by the risk associated with failure to properly preserve and produce e-documents. The focus of the case can shift from the merits to the conduct of counsel, in-house counsel and the ultimate client.

9. Electronic Documents Never Really Disappear.
You know this, but there are practical concerns. Unless a hard drive has been destroyed or is weighted with concrete at the bottom of a river, it is very likely that a forensic expert can recover virtually any document that was ever on it. A request for forensic review of an opponent’s hard drive assures that an opponent will make the same request of you. Before engaging in a duel of electronic experts, litigants should make sure they are aware of the documents hiding on old hard drives.

8. The document that fell behind the copier.
Electronic documents require, in part, traditional lawyering skills. Interview document information sources and document custodians thoroughly. Although a custodian may have paper documents in his or her office and closed files offsite, e-docs may be in a variety of places. Finding these documents can be the equivalent of locating the document that fell behind the copier. Finding e-documents requires more than identifying the custodian. Counsel must learn the following: information system architecture; the kind of e-mail system; whether there are multiple servers and if so, on which server or other storage devices a custodian’s e-mail files reside; whether the custodian has access to other storage devices such as shared drives, desktop computers, notebook computers, PDAs or other portable media.

7. Now – Not Later.
In many federal courts and a growing number of state courts, counsel are obliged to obtain and exchange information about client electronic documents early in the case. Some federal courts require exchange of such information now (see Electronic Discovery Guidelines at www.ksd.uscourts.gov). Effective in 2006, the Fed. R. Civ. P. are amended to require exchange of such information. Litigants should expect that e-discovery issues will arise in the first weeks of litigation.

6. Keep the focus on the Merits of the case, not your Demerits.
Jurisprudence in electronic documents and discovery makes clear that failure to properly address 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. In order 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 electronic discovery protocols. Deal forthrightly with the court. Explain that although documents can be recovered, it does not happen with the push of a button. Develop object examples that show the court the size of a gigabyte of data -- make the abstract real.

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 turn it into bits and bytes – digitize it. When converted to an electronic format (typically .tif or .pdf), 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. Ordinarily, if documents are converted to .tif they must either be abstracted (expensive and labor-intensive) or should be created so that the text is searchable (probably not quite as expensive and not as labor-intensive).

4. Do-It-Yourself Electronic Discovery - To Vend or Not to Vend Although a corporate in-house IS 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 electronic discovery has one or more document review platforms that are adequate for internal document review and can utilize search terms to assist in locating discoverable information. (At Lathrop & Gage, for example, we have two such software platforms.) However, even an experienced law firm should not collect electronic documents. To avoid spoliation claims, assure document integrity, protect metadata and provide testimony by affidavit or otherwise, a vendor is essential. In certain cases, vendors may also provide document review platforms, sophisticated programming, decryption, forensics and other services.

3. RFPs - Many a brain cell has been burned and tree converted to paper in preparing and responding to e-discovery requests for proposal. Sedona has an excellent, all-inclusive, RFP template available for download at www.thesedonaconference.org. However, in many cases slavish devotion to the form RFP results in killing an ant with a sledgehammer. Use the example as a guide, not a mandatory form. Generally, a very trimmed-down version of an RFP and close work with vendors to specify the kinds of services required without burning technology time, attorney resources and client dollars is adequate to reach the desired result.

2. Apples and Oranges Although the Sedona Conference has identified numerous best practices regarding electronic discovery and evidence (see Part I of this article), there is no standard vendor model or basis of comparison for vendor pricing models. In reviewing vendor proposals for electronic discovery, the customer must develop criteria to compare basic vendor services. In addition, all pricing models should be converted to a standard unit of measure – per gigabyte price or per page price for comparison purposes. Further, the client/customer must understand the pricing model when comparing vendor services. Vendor technology, methodology and pricing strategy vary widely.

1. What about the other guys? In the new frontier of electronic discovery, opposing parties should negotiate reasonable rules of engagement to avoid the electronic data equivalent of mutally assured destruction. In several cases over the last few years, we have negotiated an agreed-to protocol that ultimately is entered as an order regarding electronic discovery. The following issues are typically addressed:

• Converting paper to electronic collections,
• An initial exchange of basic system data,
• Rules for 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.

Computerized information has changed all aspects of life, including the litigation practice. As the revised federal rules are implemented and litigated, I am confident that we will look back on our initial efforts in this area as quaint and kind of interesting.

For now, although these are not the only 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.