Electronic discovery is radically changing the practice of law and having a profound impact on the process of litigation.  Essentially, electronic discovery is the act of providing or obtaining pertinent/discoverable information stored on a computer, a computer network or a computer storage device.  Electronic evidence is the electronically stored information potentially germane to a case. 

In most organizations, 70% or more of all information is in electronic form.  With that in mind, judges, lawyers and their clients must now consider how discovery rules (originally created to deal with traditional paper files) are to be applied to electronic files.  The standards that will determine the extent to which litigants will be required to protect, retrieve and produce electronic information on computers, networks or storage devices are being determined around the country in cases currently or recently before the courts.   

Cases in which electronic evidence is requested are not limited to computer-related incidents, but rather include the complete range of civil, criminal and regulatory cases.  The landmark case, Zubulake v. USB Warburg, LLC (SD NY July 20, 2004) involved a gender discrimination case.  In this case, Judge Scheindlin of the Southern District of New York addressed the parties’ obligations regarding the electronic evidence process that may establish new standards of practice for lawyers.  In the first of five rulings, the Court addressed the question of who should pay the cost of production.  The Court examined the obligations to preserve and produce electronic evidence, as well as the circumstances under which cost-shifting would be appropriate, and adopted a seven factor test to make such a determination.  The Court also evaluated preliminary information using the seven-factor test, to determine whether the production of the data in question was unduly burdensome.  In subsequent rulings, the court determined obligations of counsel and indicated that it was not enough for legal counsel to merely instruct a client.  Counsel must also take affirmative steps to ensure that evidence is preserved and the Court went so far as to specify reasonable steps to ensure against such spoliation.  Subsequently there have been instances where attorneys failing to adequately investigate, disclose, preserve or produce electronic evidence have brought financial and procedural sanctions, including judgment on their individual and corporate clients, as well as themselves.  Because of the increasing importance of electronic evidence, all of the rulings in Zubulake are important to both in-house and outside lawyers.  

The reality of the situation is that the demands that organizations will face with regard to electronic evidence will become commonplace, and in order to maintain a competitive edge, one must understand the applicable technology.  Lawyers need to at least understand the technology enough to ask the appropriate questions, comprehend the answers and work with experts to get exactly the type of information and assistance they require.  This is a process consisting of several stages. 

First, counsel must assess the appropriateness, scope, approach, and direction of electronic discovery in the case, making certain that electronic materials become another item on the checklist for discovery.  Next, the attorney will have to interview and select the appropriate service providers to help manage the process.   

It is rare that a single provider can handle every aspect of electronic discovery.  Instead you will have teams assemble and re-assemble for different projects based upon different needs and required skill sets.   There will be those that possess the detective and technical skills/tools to find information and recover the data.  They can be valuable to the team by helping with issues such as determining where information might be located and how best to collect it.   

Once located, the data must be converted and stored. Determining the acceptable collection and storage procedures, as well as acceptable exchange formats, is a vital task.  After the electronic information is stored and made available, it is important to be able to use search and management tools for the initial review of relevance and privilege.   

Having access to a range of tools to search and manage data is a necessary starting point.  One option is to use tools sold to end users, while another might be to engage the services of a vendor using tools it developed internally or deploying tools created by others.  Ultimately, the goal is to be able to use your electronic discovery results effectively in handling your case.  In order to accomplish this, you will need to bring your electronic discovery materials into some type of litigation support software (e.g. Summation) that will allow you to use electronic discovery just as you would paper discovery.  Once the information is in a digital format, it becomes easy to use in a variety of ways.  Familiar trial tools such as PowerPoint can be used, as well as most specialized trial presentation software (e.g. Sanction or Trial Director).  Each of these steps might involve one or more vendors, consultants or service providers.  No matter what your approach, is it is vital that the lawyer’s judgment be exercised in each step of the process. 

As with any new trend in litigation, the attorney needs to take the time to understand the issue and how it affects their practice, so that the client is best served and to gain the upper hand in negotiating with the potentially unprepared opposing party.  This, along with the ramifications of failing to recognize the importance of isolating, acquiring and maintaining electronic evidence, should lead any reasonable, responsible attorney to the conclusion that electronic evidence is not only here to stay, but will definitely play a part in the success or failure of any practice.

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Sue Ausborn is a Legal Technology Consultant for Automated Horizons, a firm specializing in information technology, legal technology, web design and marketing.
Copyright © 2004 by Automated Horizons, Inc. All rights reserved under U.S. and international law.
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