eDiscovery Changes

By: Kate McNeel

As many attorneys may be aware, the discovery landscape changed in federal court last year, when the amendments to the Federal Rules of Civil Procedure took effect on December 1, 2006, and addressed Electronically Stored Information (ESI). Since then, the level of fear, uncertainty and doubt has mounted, as attorneys and their clients are forced to face the costs and headaches associated with electronic discovery. Lawyers and paralegals are now required to evaluate, purchase and use technologies which are not only unfamiliar to them, but expensive and, at times, difficult to use. The new rules, along with the threat of sanctions, have created explosive growth in this segment of the technology market, as lawyers and their clients scramble to meet the new requirements.

For a listing of the changes to the rules affecting electronic discovery, wherein you can see which rules were amended, go to: http://www.uscourts.gov/rules/EDiscovery_w_Notes.pdf.  

Even without the amended Rules, this change was inevitable. Evidence is now digital, whether we like it or not. As storage capacity grows, and is available for ever diminishing prices, firms are able to retain larger and larger amounts of ESI. Also, with newer regulations such as Sarbanes Oxley, many corporations are required to retain and manage more information than before. In 2007, attorneys and their clients can longer expect to win a claim of “undue burden” when asked to produce a couple of terabytes of ESI.

At the highest level, the new rules do not change anything. Discovery is still discovery; that is the exchange of information so that both sides of a case are able to become conversant in all of the facts of that case. However, adding that little ‘e’ to discovery changes some practices significantly. 

One of the biggest changes may be that many lawyers and their offices will be unfamiliar with the technology involved in order to properly obtain and/or produce the eDiscovery at issue. This lack of knowledge may explain why so many legal professionals are resistant to the concept of eDiscovery and feel that they cannot run the discovery process on their own (or with their own paralegal staff) without the assistance of technology professionals. Attorneys and IT people generally have divergent vocabularies, divergent work styles, divergent goals and divergent wardrobes. It’s not easy to find attorneys able to “speak geek,” and IT staff able to understand “legalese.” It is now vital that legal professionals not only become conversant in the new Rules and Procedures, but that they also develop at least a basic understanding of the technologies involved in eDiscovery.

Another change required will be due to the immense volumes of data now available for potential discovery, coupled with the vast variety of devices in which that information is now captured.  For example, 10 GigaBytes of data is the equivalent of about 80 Banker’s Boxes, or about 200,000 pages.  A single iPhone, with its 8 GB flash drive, could potentially fill more than 60 Banker’s Boxes all by itself. Most hard drives, even on the cheapest computers currently being sold, are a minimum of 60 GigaBytes.  There’s also the EIS captured by copiers, scanners, GPS systems, voice mail systems, etc. Even small businesses, with a few networked desktop machines, a networked multipurpose device (combination printer/scanner/copier), and a few Blackberries (or other PDAs) can easily accumulate close to a terabyte of EIS without even noticing.

These two factors – unfamiliarity with technology and volume amounts - account for the biggest headaches being created in eDiscovery today. The good news is that the problem is manageable, and existing technologies are fully capable of meeting the needs of most attorneys. The tricky part lies in correctly identifying and deploying the technologies that you need for your firm and your cases. Software vendors have identified eDiscovery as a key growth market, and so are working extremely diligently to provide attorneys with a number of options should attorneys wish to employ outside consultants. However, many of these vendors are putting forth incredible marketing claims, so attorneys need to take care to protect themselves against sharks circling in the water, with an eye of the attorney’s wallet.

So, what’s the average legal professional to do? You and your clients need to think about “litigation readiness” – trying to anticipate policies, procedures and technologies you would need in the event of litigation. 

The first step, and the most critical for your clients, is to create a document retention/destruction plan.  Coupled with this, create an inventory of all EIS (what’s there, what’s generated on a monthly basis, how it’s stored, where it’s stored, etc). The retention/destruction plan forces you and/or your clients to identify which information constitutes “records” that must be maintained or archived for legal reasons, and creates a structure for consistent destruction of material that is no longer relevant to the operation of a business.  Having a viable and consistent policy surrounding the destruction of old information (especially the ever ubiquitous e-mail) is crucial, in the battle to keep a lid on the amount of EIS a company stores. As long as a retention/destruction plan is in place, and being followed consistently and according to applicable legal standards and guidelines, your clients cannot be found guilty of maliciously destroying evidence (as long as the EIS is erased before litigation begins, or is anticipated). Attorneys should take care to note that in the event that litigation is anticipated, your clients may be required to institute a “litigation hold,” and destruction activities must cease or be curtailed in order to preserve information which may be discoverable. Those clients who elect to purge documents when litigation may be reasonably anticipated do so at their own peril, as in addition to any penalties imposed, courts may instruct a jury that the contents of such documents would have been adverse to the client.     

Coupled with creating retention policies, you and your clients must take inventory of all electronic assets. This inventory must be detailed enough to provide specific, accurate information about where EIS is stored, and the format in which it is stored. For example, in many e-mail systems, the active e-mail server may be on one machine, but e-mail storage may be on other boxes, and personal e-mail may also be located on employee hard drives. The inventory must specify where the application runs and it must specify all of the places that each application puts its data. This level of detailed inventory is also necessary to ensure that retention/destruction policies are followed thoroughly, throughout your clients’ organizations. Keep in mind, that in the event of litigation, it’s the data, not the application, that is potentially discoverable, and ensure that your IT staff understands this.

Once you and your clients know what EIS they have, and how to manage it, you have completed the minimum steps needed for “litigation readiness.” As part of this process, it is worth taking time to note which legal professionals seem comfortable with and curious about the technology, along with identifying articulate IT professionals, who are focused on supporting business needs. As noted above, the human factor is what makes this process particularly challenging and establishing rapport with key individuals will often pay off later in the game.

The technology in eDiscovery does not matter nearly as much as your legal expertise does. If you are involved in current or immanent litigation, think first about what you need to get from any software/hardware you purchase. Is everyone located in the same office, or are the attorneys scattered across the state, the country or the globe? Will you be reviewing millions of pages, or only a couple hundred thousand? Will everything be text, or will you need to handle video or other multimedia formats? Are you faced with several million emails, and you’d like to run some analysis to see what the patterns are? Walk through the process with your IT staff, and make sure everyone understands the legal and case requirements before anyone starts tossing around technology terms. Technology should support and facilitate your discovery style, not force an alien process into your workflow. There are a bewildering array of options out there (all with significant price tags attached); the best way to avoid mistakes is to focus on what technology can do to help, not how it works.

There’s no getting around it; eDiscovery is here, it is challenging, and mistakes tend to be very costly. Spend some time up front on litigation readiness, and on identifying in-house or consultant IT and legal staff that can work together, and you will avoid the worst of it. 

McNeel Consulting, Inc. is a Mississippi-based provider of e-Discovery and litigation technology support services for law firms and legal departments. We are focused on helping our clients produce and receive electronic materials during the discovery process, efficiently manage and review electronic documents, and prepare materials for trial. Our services include needs assessment, technology evaluation, purchase and implementation, database and end user interface design, best practices workflow for document review, and customized training. We have experience in a wide range of technologies, from setting up scan stations, implementing databases, working with text- and video based depositions, and installing desktop- and web based software packages.  As consultants, we strive to provide the highest quality customer service, tailored to provide the most usable and cost effective technologies available. McNeel Consulting was founded in January 2006 by husband and wife team, Pleasant and Kate McNeel.