E-discovery: The Source, the Problem, the Cure

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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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