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E-discovery: The Source, the Problem, the Cure [by Cary J. Griffith] In the past, responses to document requests involved memos, letters, reports, and similar printed evidence delivered in file boxes. Lawyers and legal assistants cloistered themselves in dark rooms with wavering overhead lights and paged through sheets of paper. But the world has gone digital, and its effect on the document-discovery process has been profound enough to have spawned a new phrase: electronic discovery.
Changes in the format and nature of today’s
derscores the importance the firm places on
tant, how to properly implement preventive
content are radically altering the docu-
understanding the phenomena and figuring
measures to minimize the impact of having to
ment-discovery process. Yesterday’s memos,
out what can be done about it.
respond to those requests.
today’s word processing documents, emails,
The Source
To place the problem of e-discovery in an
spreadsheets, Internet files, chat room tran-
In the days of yore, documents were hand-
historical perspective, there was a time when
scripts, databases, and a vast assortment of
written or typed and stored on paper. There
ignorance was a reasonable defense regard-
other information types and formats, man-
was a limit to how much could be produced
ing errors of omission. In the early years of
aged by numerous applications and stored
and managed. Paper production has inherent
the e-discovery process, attorneys could an-
on a variety of media. Today, lawyers not only
limitations that have been largely overcome
swer requests for electronic documents with
need to know what information to ask for,
by computers. Consider these staggering
“they’ve been deleted” or “the tapes have
but also how to access and use it. Judges
facts. Today, some analysts estimate the
been used to backup more recent emails.”
need to know how to officiate the process.
growth of digital information at 96% per year.
For instance, one of the typical ways in which
And companies need to know how to set up
More than 80% of corporate information is
companies often delete emails is by recycling
policies and procedures that can diminish the
now in digital form. In 1997, an estimated
backup media. Tapes and discs can be expen-
potentially overwhelming task of responding
67 million email users generated 2.7 trillion
sive. It makes good economic sense to reuse
to requests for electronic documents.
messages; by 2000, those numbers grew to
them. Once reused, the emails from just a
108 million and 6.8 trillion, respectively; and
few months ago are erased and covered over
When it comes to the discovery process,
by 2003, the estimated messages reached
by new emails. There was a time when the
“we’re in a transitional phase,” explains
12.6 trillion. Technology has made the cre-
company’s backup process influenced what
Steven Bennett, partner with the interna-
ation, conveyance, storage, and retrieval of
could or couldn’t be produced. More recently,
tional law firm Jones Day. Bennett describes
information phenomenally easy and efficient.
judges have been much more knowledgeable
a variety of discovery issues that have
The result has been the continued rapid
about digital information and much less for-
completely altered the way lawyers practice.
growth of information and the birth of new
giving of companies who fail to produce it. On
“Vendors are developing technological solu-
applications and technology to manage it. But
July 21, 2004, the Washington, DC, District
tions. Judges are getting more experience
with regard to the document-discovery pro-
Court sanctioned the Philip Morris Company
with digital information. The rules process is
cess, the information boom has also become
with a $2.75-million fine. The company had
adapting. And more and more litigators are
a legal bane.
been ordered to preserve all potentially
letters, and reports have been replaced by
getting familiar with the issues.”
relevant records related to pending litigaThe Problem
tion, including emails, but failed to prevent
To assist its lawyers in acquiring familiar-
Basically, the e-discovery problem involves
employees from deleting their emails.
ity with the issues, Jones Day created an
too much information in too many formats
e-discovery committee. Bennett is head of
on too much media managed by too many
According to the international law office
that committee and describes the group as
applications. The preceding makes the
of Seyfarth Shaw, the Philip Morris case is
“a resource for gathering our collective [e-
e-discovery process complicated at best,
discovery] wisdom. It’s an internal network of
overwhelming at worst. And that’s from a
people who have experience in the area and
litigator’s perspective. Judges struggle with
who are counseling clients and participating
how to best officiate electronic discovery,
in some of the rule-making organizations.”
and corporate counsel struggles with how to
Jones Day’s creation of the committee un-
efficiently answer requests and, more impor-
significant for two reasons. In a One Minute Memo discussing the case, Seyfarth Shaw believes “the massive sanction signifies the financial consequences that may attach if a corporation fails to fully comply with a preservation order.” And “the fact that the court
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imposed the sanction absent a finding of bad
The Cure
on paper. These days, the multitude of file
faith underscores the seriousness with which
Lawyers, judges, and others are taking a
types and the applications (including versions
courts view electronic discovery.”
multi-faceted approach to addressing dif-
of applications) required to access and use
ficult e-discovery issues. For starters, the
them can be mind-boggling. Michelle Lange,
In fact, after a long period of struggling with
legal community is beginning to address
Legal Technology Staff Attorney for Kroll
how best to address e-discovery issues,
gaps in the rule-making process that fail to
judges are starting to augment the Federal
adequately cover the e-discovery process. In
Rules of Civil Procedure with relevant guide-
addition to local guidelines like those Mag-
lines of their own. In the U.S. District Court
istrate Waxse produced, the federal rules
of Kansas, Magistrate David J. Waxse drafted
concerning discovery are also being revised.
Ontrack, Inc., and the author of Electronic Evidence and Discovery: What Every Lawyer Should Know (ABA: summer 2004), describes how quickly the e-discovery landscape has changed.
required disclosures. “The idea was we’ll
In an effort to respond to difficult e-discovery
“When I first started here and we’d meet with
offer these as suggestions, not as require-
issues at Ceridian Corporation, Ann Curme
attorneys, I remember a few times when they
ments,” commented Waxse. “The guide-
Shaw is attacking the problem on a variety
said, ‘You can’t possibly imagine that a judge
lines start with the premise that electronic
of fronts. In some cases, she’s returned to
would force me to search a computer.’ Now I
information is out there and here’s what you
court to limit the scope of initial requests.
sit down with attorneys and they say, ‘I know
should do to deal with it.” Waxse also noted,
At the company level, she is part of a group
e-documents are going to be an important
“The Federal Rules Committee has made
that is “reviewing and updating our document
part of this case. I need to get up to speed on
several suggestions for revising the actual
retention policy to see if we have everything
this stuff.’”
rules involving e-discovery. So things are
we need, to review timelines for destruction,
changing.”
and [to] make sure we’re educating people
Becoming informed about digital information
about what it says and how it pertains to e-
and how it’s managed is becoming an essen-
e-discovery guidelines that focus on the 26(a)
One of the biggest reasons for the rules’
documents.” Part of her ongoing educational
tial part of the e-discovery process. Because
changing is the growth of information and the
efforts involves training managers on the
if you understand how the technology works,
increasing sophistication of lawyers who ask
company’s ethics policies. To that process,
you have a decided advantage over counsel
for it. Ann Curme Shaw, Associate General
she has now added a key component involv-
who rely on less progressive methods of
Counsel for Ceridian Corporation, has had
ing document retention, “educating man-
organizing and accessing information.
plenty of experience dealing with requests
agers about what it says, particularly with
for electronic information. Lately, she’s
regard to e-documents.”
seen an increase in pre-suit letters to halt
“A year ago,” Ms. Lange notes, “people were requesting printouts [of electronic docu-
document destruction. “Opposing counsel
Not surprisingly, there are now litiga-
ments], but not the format in which they were
wants to make sure we’re making backups
tion-support companies which specialize
being produced. We advised our clients to get
of everything,” she says, even before they file
in helping businesses respond to e-discov-
it in the original format because of the meta
their initial complaint.
ery requests. But they’re not cheap. For
data you’re missing. They weren’t getting
example, an average cost for processing a
the full value of the information.” Today, Ms.
Once the complaint is filed and company
company’s emails is approximately 14 cents
Lange is seeing quite a few cases that dis-
lawyers are forced to respond to requests for
per email. That’s not terribly expensive for
cuss the format of the electronic information,
electronic information, it can cost hundreds
1,000 emails. But considering the rate at
which she points to as “an example of under-
of thousands of dollars to comply with the
which emails are written and the problems
standing the ins and outs of the technology
order to save everything and review it for
some businesses have of figuring out how
and how it can work for you.”
relevant documents. Ms. Curme Shaw recalls
to limit or review those emails, it’s conceiv-
one case in which two legal assistants spent
able some companies would have to produce
Joan Feldman, founder and President of
eight months reviewing backup emails. “The
millions of documents. That’s when you start
Computer Forensics, Inc., counsels compa-
problem is the proliferation of email usage.
getting into real expense.
nies on a variety of e-discovery issues. She
If you have to look through everything for
mentions three actions most companies
anything relevant, the task can be enor-
But the assistance of these new high-tech
can take that could easily save them time
mous. You can negotiate to do targeted word
companies can be indispensable. The nature
and money. First, most companies need to
searches,” Curme Shaw adds, “but some-
of information technology is radically differ-
“bridge the gap between corporate counsel
times it’s still too broad.”
ent than when documents were produced
and the information technology (IT) group.”
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There needs to be “communication between IT and the legal group regarding records, with emphasis about mapping out data location, so in discovery I’d be able to move quickly to get what I wanted.” Ms. Feldman also suggests making sure document-retention policies address “email and other computer-based documents.” And finally, “corporate counsel needs to work with the human resource group to make sure there’s a clear exit protocol for employees to cleanup their data, or” when necessary “to hold onto it.” Ms. Feldman believes “these preventive measures could save hundreds of thousands of dollars.” The digital revolution has dramatically changed the way American companies operate. It has also fundamentally changed document discovery. Today, lawyers have little choice but to become knowledgeable about the new e-discovery process.
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