By Conrad J. Jacoby, Esq.
As the legal community continues to puzzle through the impact that digital information is having on the practice of law, many practitioners are guided by long-standing misconceptions and misunderstandings about electronic discovery. Whatever seed of truth exists in these platitudes, taking them at face value can lead to poor strategic decisions that limit the effectiveness of otherwise competent legal advice. Several particular “rules of thumb” seem particularly common in the legal community, even with extensive education efforts.
Myth: E-Discovery Is Now Required In Every Case
Reality: False. Since December 1, 2006, discovery of electronically stored information (“ESI”) has been a mandatory topic of conversation in every federal case and in an increasing number of state court matters. However, simply discussing e-discovery doesn’t materially change the basis for a legal claim or the factual evidence that supports or disproves the case. While individuals and businesses alike rely on computers for many reasons, e-discovery comes into play only when relevant information is stored digitally.
In some situations, even though electronic evidence is available, it may be possible to resolve a dispute based on other evidence. Such an analysis is necessarily case specific, and the outcome is never a foregone conclusion, because so much useful information is often found in electronic evidence. However, situations can occur in which electronic evidence is strategically less important than other evidence. For example, in a breach of contract case, voluminous electronic information may pertain to how a business contract was negotiated.
Typical electronic evidence would include e-mail messages, draft documents, and spreadsheets of estimated profitability. However, the corporate decision that legally bound to specific guarantees and covenants took place at meetings of its board of directors. The handwritten notes of board members, along with annotations they made on printouts of electronically-prepared documents that were distributed at each of their meetings, may contain the most relevant and probative evidence in the entire case. It may be possible to resolve the case on the basis of only those traditional hardcopy materials.
An increasing percentage of cases already require the preservation and production of ESI. However, a legal team still has full discretion to work up a case any way that it believes will achieve best results for its client. Mandatory discussion about electronic discovery does not preclude the possibility that digital evidence will only have secondary importance in the case. However, attorneys must be prepared to analyze the extent to which it is a factor in their cases.
Myth: Electronic Discovery Substantially Raises The Cost Of Litigation
Reality: Sometimes true, sometimes false. It’s impossible to deny that the electronic discovery services business has grown exponentially over the past few years. Certain costs are associated with managing electronically stored information, and the cost can be significant in large cases. However, the fact that large cases can require large budgets for processing electronic documents doesn’t mean that all litigation matters require the same budget. Indeed, under the amended Federal Rules of Civil Procedure, litigants have a number of new opportunities to discuss e-discovery issues with their opponents and negotiate ways to contain costs.
Careful preparation is the key to limiting costs. For example, a client that understands the structure of its ESI repositories can impose targeted legal hold measures that (1) frees other electronic information to be used as appropriate without fear of inadvertent spoliation; and (2) limits the amount of ESI that may have to be collected, processed, and reviewed (It should go without saying that the less that’s in a discovery document collection, the lower its overall cost.).
In addition, to the extent that a requesting party is not reasonable in good faith negotiations about the scope of a legal hold, a well-prepared producing party has ready access to the information needed to persuasively present its position to a court and seek affirmative relief. After all, the guiding principle of fact discovery in civil litigation is reasonable inquiry at reasonable expense, as measured by against the significance and nature of the underlying legal dispute.
Myth: People Go To Jail For Mismanaging E-Discovery
Reality: False as stated. People go to jail for intentionally tampering with or destroying relevant evidence, regardless of its format. While a number of cases suggest that lawyers have an affirmative duty to be knowledgeable about electronic discovery as a matter of professional competence (e.g., Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel Employees, 212 F.R.D. 178 (S.D.N.Y. 2003)), a legal team or client that uses reasonable efforts to preserve potentially relevant ESI is unlikely to face criminal penalties, even if things to horribly wrong. On the other hand, a number of civil remedies, such as excluding evidence (United States v. Philip Morris, USA, Inc., No. CIV.A.99-2496, 2004 WL 1627252 (D.D.C. July 21 2004)), reading a jury instruction to the jury that permits them to assume that missing ESI contained information harmful to the producing party (e.g., Zubulake v. UBS Warburg LLC (“Zubulake V”), 2004 WL 1620866 (S.D.N.Y. July 20, 2004), or even striking affirmative defenses (e.g., Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005),) can have a huge impact on litigants and their counsel, even without orange jumpsuits and jail time.
Myth: E-Discovery Is An Exclusive, Esoteric Practice Area That Can Only Be Properly Managed By [Expensive] Specialists
Reality: False. “E-discovery” is not a monolithic subject, and many important tasks that fall within this general description can be executed very well by even the most technologically unsophisticated practitioner. For example, the most important part of civil litigation fact discovery for both requesting and producing parties is identifying where potentially relevant information is stored. An age-old but highly successful strategy for finding these materials is identifying people involved in the critical events and interviewing them about what they remember, including where relevant documents and information can be found. This isn’t e-discovery; it’s basic case development.
E-discovery kicks in when it’s time to identify ways in which fact witnesses may have stored information electronically, but even here, crucial initial research requires only limited technical knowledge. Does the fact witness use a computer? More than one computer? Where are these computers located? Does the witness send and receive e-mail messages? Does the witness save e-mail messages after they’ve been read? This information provides the foundation for all subsequent (and potentially technical) preservation and collection efforts, but it doesn’t take a computer scientist to have a productive conversation on these topics.
Technical expertise can be required to move beyond initial information-gathering questions and into specific issues of data retention, collection, review, and production. And indeed, current e-discovery technology is evolving so quickly that it’s important to have someone on the legal team who can provide this specialized expertise. However, these subsequent tasks rely by necessity on earlier, old-fashioned, case preparation.
Myth: Lawyers Have To Understand E-Discovery
Reality: True. For a lawyer to determine whether or not e-discovery is relevant in a specific case, he or she must have some understanding of the ESI used or stored by the client and its opponent. Ignorance is not an option; a number of legal ethics opinions and published judicial opinions suggest that mismanaging e-discovery may be a breach of a client’s duty to provide competent services to clients. An attorney may not need to understand the esoteric nuances of digital information storage, but in a world where more than 98% of all new information is created electronically, it’s no longer possible for anyone to deny the importance of electronic evidence in the world in which we live and practice law.
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