Volume 10, no. 2
Why Every Solo Needs to Understand E-Discovery
By Craig Ball
As a solo practitioner, do you really need to understand electronic data discovery (EDD)? Heck, no! So long as you don’t use computers for recordkeeping or communications, or sue or represent anyone who does, don’t give EDD a thought.
Of course, just about every person and business uses computers today. And, about 95 percent of all documents are born electronically, with most never being printed. Devices ranging from digital copiers to voice mail systems to the company car are generating evidence and storing it digitally. Add to this the 40 billion-or-so e-mails circulating every day, and you’ve got to wonder if any lawyer can ignore EDD. If you’re not investing to understand and pursue EDD, you’d best be investing in malpractice coverage.
Lawyers have buried their heads in the sand about EDD for a long time. Even those who long ago added “electronic data compilations” to the definition of “document” in requests for production rarely objected to the failure to produce electronic evidence. Paper is what we knew, and paper is all we cared about.
But, by ignoring EDD, solos cede an enormous advantage. EDD is the stone in David’s sling. It doesn’t just level the playing field against the large, well-heeled opponent, it tilts it your way. Consider some of its advantages:
EDD is cost-effective. Can you handle a case where the defendant produces a million pages? That’s 400-500 banker boxes! Voluminous paper discovery necessitates costly records duplication, transport, storage, management, and disposal. Effective searching entails expensive scanning and OCR, or more expensive abstracting and indexing. With EDD, a million pages of data can arrive on several inexpensive optical disks and be reviewed and searched using any personal computer.
EDD carries clout. EDD hands the solo attorney a big stick by forcing opponents to bear the true cost of computerization. In their rush to automate, businesses largely abandoned sound records management in favor of commingling just about everything on massive networks and strewing the rest across countless local hard drives and digital devices. Moreover, data is at once hard to destroy and hard to preserve, making the potential for spoliation a sword of Damocles hanging over the head of a careless or arrogant opponent. Electronic discovery brings these chickens home to roost. It may simply be cheaper to settle a case than bear the cost of shortsighted retention policies.
EDD is where the truth lives. Unlike its snail-mail counterpart or other formal communiqués, e-mail tends to be unguarded and spontaneous. People say things in e-mail that they would never put in a written report—and what they say hews closest to the unvarnished truth. E-mail seldom gets printed out and added to paper files. Without EDD, e-mail is as transient as a phone call. When you skip EDD, you may miss the real story.
EDD tells the whole story. There are two components to any computer-generated record: the content of the record and a layer of information that holds data about the data in the record. This is metadata. If all you receive in discovery is a printout of a record, chances are you’re not seeing its metadata, which can prove more revealing that the data it describes. Metadata may simply reflect a file’s name, size, and creation date, but it can also offer insight into the source of the data, its author, time it took to create, whether others have viewed it and so on. Without EDD, you’re getting less than the whole story.
So, do you need to understand e-discovery? Only if you want to succeed.
The Depths of E-Discovery
For an in-depth look at e-discovery, see “Electronic Discovery: What Dangers Lurk in the Virtual Abyss?” by Sharon D. Nelson and John W. Simek in the June 2004 issue of GPSolo magazine. Or go online to www.abanet.org/genpractice/home.html and use the left-hand navigation bar and click on “magazine.”