Tips on Technology

The ABC’s of Electronic Discovery

by Richard K. Herrmann, Esquire

For more years than we all care to admit, I have been discussing, and you have been reading, the impact of technology on the practice of law. I have always considered technology in two categories: (1) technology used in the general practice of law, such as document management, time and billing systems, conflicts, contact management and calendaring; and (2) technology used in litigation, like case management, electronic research and courtroom technology. Only recently did it occur to me that there is an incredible overlap in our use and understanding of technology.

Sometimes we are advocates, and sometimes we are parties to litigation. In today’s litigation, it is important that we understand the impact of electronic discovery from a tactical and strategic point of view. We need to seek discovery focused on the disclosure of electronic information; we also need to understand what is being sought by our opponent so that we can seek the information from our clients and appropriately respond pursuant to the Rules. We also need to advise our clients of how to protect themselves in their daily business, so that the use of electronic discovery does not become unbearable in future litigation. It can create incredible disruption; it can cause unexpected disclosure of information; and it can cost more than most people can imagine.

As potential parties, we ought to understand how to control electronic discovery before we find ourselves in litigation. There is absolutely no reason we should preach one set of standards to our clients and practice a lesser standard ourselves. And there lies the overlap. Let’s take a look at the issues most associated with electronic discovery. But first,

What is Electronic Discovery?
Any information, which is created and/or stored electronically, will fall within the scope of electronic discovery. This means that email, word processing documents, spreadsheets, calendars, time and billing systems, and other databases may be sought. Voice mail and electronic faxes will be included as well. Documents, which are traditionally received as paper but scanned into the computer for storage, will also be subject to electronic discovery. The parties are seeking information which is stored electronically, even though the documents may have been created with a pen on paper [or quill on parchment].

Why has Electronic Discovery become so important?
The use of electronic information has evolved at incredible speed during the last decade. A few statistics may help. As reported in The Sedona Principles for Electronic Document Production:

In 1998, the U.S. Postal Service processed approximately 1.98 billion pieces of mail. During that year, there were approximately 47 million e-mail users in the United States who sent an estimated 500 million e-mail messages per day, for a total of approximately 182.5 billion e-mail messages – more than 90 times as many messages as the U.S. Postal Service handled the same year. In 2003, it is projected that there will be 105 million e-mail users in the United States, who will send over 1.5 billion e-mail messages a day, or approximately 547.5 billion e-mail messages per year – nearly as many messages in a day as the U.S. Postal Service handles in a year. [www.thesedonaconference.org]

These figures are staggering. It is consistent with well-reported statistics that more than 90% of the information created in business is generated electronically.

What is the best advice you can give to a client for protection?
Create a document retention plan and enforce it. [This plan will provide significant control over the information, its use, and its disclosure.]

What is the most important interrogatory you should ask?
Describe your document retention plan. [Once you understand the document retention plan, you will have a roadmap to guide you through the discovery process; and you will know what to expect when you seek production of the plan]

What is the first request for production that you should make?
Please produce all drafts and final versions of all document retention plans created or used by you during all relevant periods. [After you have reviewed the plan itself, you will be in a better position to seek good, focused discovery of all information, electronic and otherwise.]

What is the first 30(b)(6) deposition you should notice?
Please produce for deposition the person who will speak on your behalf pursuant to Rule 30(b)(6) regarding this plan? [You want to know whether the plan was enforced and the identity of those responsible for its enforcement. You will also want to depose someone who can explain how the computer systems and archive systems are maintained.]

I expect you are seeing a trend here. There is more to seeking electronic discovery than simply asking for it. You want to be focused and clear in your request. You do not want to receive millions of emails in response. There are a host of other issues being reviewed daily by the courts in these cases. Among them are, scope of discovery, who bears the cost, spoliation of evidence, waiver of privilege, and protection of privacy. We’ll take a look at these very important matters in the upcoming months.

Return to February 2004 Table of Contents.