Electronic Discovery: It’s Just Technology, Right?

Vol. 16 No. 4

By

Howard Reissner is the CEO and founder of Planet Data.

Daryl Shetterly is a partner in LeClairRyan's Discovery Solutions Practice.

 

Newly minted lawyers who barely remember the days before texting, Facebook, and smartphones were part of our daily lives may be forgiven for wondering why so much angst has developed at the intersection of law and technology. Surely our sophisticated legal system can adapt to the increased use of electronic communication, right?

If you weren’t on the scene to watch it unfold, it may be hard to appreciate the ways the explosion of information our clients create and store has changed the face of discovery. There was a time when clients sent us a folder or box of paper containing the documents relevant to the litigation.

Now the data is likely to come on a hard drive containing gigabytes or terabytes of data that, if printed to paper, would fill the lobby of our law firm with boxes. Finding the relevant documents is like looking for a needle in the proverbial haystack. Depending on the value of the case, it may cost more to find the relevant documents than the case is worth.

So how can you help litigants meet the goal of a “just, speedy and inexpensive determination of every action and proceeding” referenced in Rule 1 of the Federal Rules of Civil Procedure?

When faced with an electronic discovery issue, think about it in terms of people, process, and technology.

People

It is difficult for any lawyer to keep up with both evolving technology and the steady stream of federal and state cases dealing with electronic discovery. It is virtually impossible to keep up-to-date if your day job is focused on intellectual property or products liability law. For that reason, electronic discovery has become a specialization of its own.

And here is a career opportunity: for complex litigation, it is becoming increasingly common to utilize a specialized electronic discovery counsel. It is this lawyer’s job to ensure the electronic discovery aspects of the case are handled in a way that is defensible and cost effective.

Young lawyers, particularly those with a technology bent, would be well advised to develop expertise in electronic discovery as a way of adding value to their firms and distinguishing themselves from the pack.

Process

Managing a large electronic discovery project is similar to managing any other large project. From the outset, it is important to develop a sensible project plan that takes into account the unique factors of your case. The plan should include a fully defensible work-flow, data processing technology, sampling, and reporting that adheres to industry best practices standards.

Today, most clients are on a strict operating budget, so cost efficiencies are also important. There can be a big difference in both cost and quality results on electronic discovery projects that are properly planned and managed versus projects that are ad hoc and reactionary.

Technology

Technology continues to evolve and develop in ways that affect both the types of electronic discovery problems we face and the types of solutions we deploy to handle electronic discovery issues. Electronic discovery depends primarily on technology to identify, preserve, collect, process, filter, and review data. Technology that was adequate for these tasks only a few years ago is now outdated as newer tools emerge and data stores become increasingly complex. Texting, Twitter, and Facebook were not discovery issues five years ago. Today, each of these modalities is discoverable. Technology is evolving; keep abreast of the latest technology options.

Electronic discovery is complex. To manage it, identify and involve the right people as soon as possible. Develop a project plan that is customized for the task. Deploy technology solutions that are defensible and cost effective. Lastly, keep the end in mind: it is your job to ensure the electronic discovery aspects of the case are handled in a manner that provides value to your client and reinforces your value to your employer.

 

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