April 2006
Volume 2, Number 3
Table of Contents

E-discovery for the Solo or Small Firm Practitioner – what you need to know and why

By Jennifer Wojciechowski

Despite the fact that more than 93% of information is created electronically, discovery of electronic data during civil litigation is one topic that may be new to many general, solo and small law firm practitioners. While issues relating to electronic data have traditionally surfaced in larger and more complex cases, the integration of technology in nearly every aspect of daily life requires solo and small firm litigants to understand the role electronic data may play in their next case and to develop strategies for seamlessly managing digital data throughout the lawsuit.

What is electronic discovery?

In today’s information age, conducting paper-exclusive discovery during litigation leads to the recovery of a mere fraction of the information available in most cases. Thus, w hen a lawsuit ensues, attorneys are routinely requesting access to and courts are ordering production of electronically stored information.

In any given case involving an electronic discovery request, a variety of electronic media types may be involved – from individual desktops and laptops to network hard disks, removable media (e.g., floppy disks, tapes, USB drives, CDs, DVDs, etc.), cell phones and personal digital assistants (e.g., Palm Pilots, Blackberries, etc.). Digital evidence contained on these media types can exist in a variety of formats including word processing documents, spreadsheets, e-mails and attachments, instant messages, Web content, metadata and other sophisticated data formats.

If deemed responsive to a discovery request, electronic information must be preserved, collected, processed, reviewed and produced to the opposing party. Electronic discovery is simply the process of handling such requested electronic data pursuant to the discovery requirements set forth in governing federal, state and local civil procedure rules.

What are lawmakers and the judiciary saying about electronic evidence?

The Federal Rules of Civil Procedure make it clear that parties can obtain discovery of all data relevant to the claim or defense of any party. In fact, changes are being made to the Rules clarifying this extends to any electronic data relevant to the claims or defenses being made in a lawsuit. In April 2006, the United States Supreme Court unanimously approved proposed amendments to Federal Rules of Civil Procedure 16, 26, 33, 34, 37 and 45 that specifically address the handling of electronically stored information during discovery. Unless Congress takes steps to prevent their enactment, the new Rules will become effective December 1, 2006.

In interpreting discovery rules, courts have routinely concluded electronic data is discoverable. As noted by a New York court more then a decade ago, “The law is clear that data in computerized form is discoverable even if paper ‘hard copies’ of the information have been produced…[T]oday it is black letter law that computerized data is discoverable if relevant.” Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D.N.Y. Nov. 3, 1995). Other noteworthy e-discovery decisions practitioners should be aware of include the following cases:

  • Deleted Data can be Discoverable: Deleted electronic evidence is fully discoverable. Dodge, Warren, & Peters Ins. Servs. v. Riley, 2003 WL 245586 ( Cal. Ct. App. Feb. 5, 2003).
  • Duty to Preserve E-Evidence: There is a duty to preserve evidence that parties know, or should know, is relevant to the ongoing litigation, including preservation of electronic data. Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003).
  • Spoliation Sanctions Defined: Failure to preserve e-mail and electronic documents (whether intentional or inadvertent) is sanctionable as spoliation of evidence. Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 ( Fla. Cir. Ct. Mar. 1, 2005).

What should solo and small law firm practitioners know about e-discovery?

As illustrated by the federal and state civil procedure rules and emerging case law, all attorneys – regardless of firm size – are obligated to determine if electronic data is a legitimate part of their case. Complying with this obligation involves developing strategies for identifying, locating, retrieving, preserving and authenticating electronic evidence. Lawyers are also responsible for developing, implementing and ensuring compliance with data preservation plans and for producing responsive documents to the opposing party, court or agency.

As evidence continues to be created and stored electronically, s olo practitioners and small law firms must understand the unique challenges posed by digital data and adopt strategies for handling electronic information in the most efficient and accurate manner during litigation. Litigants with a comprehensive understanding of the e-discovery process will be in the best position to advocate for their clients and deliver a case-winning discovery plan of attack.

Jennifer Wojciechowski is a Legal Consultant for the Chicago office of Kroll Ontrack, where she advises law firms and corporate law departments on legal technology issues regarding electronic discovery, computer forensics and the incorporation of traditional paper discovery into a unified electronic document review platform. Kroll Ontrack Inc. ( www.krollontrack.com ) provides large scale electronic and paper-based discovery, computer forensics, and data recovery solutions to help companies, law firms, and government agencies quickly and cost-effectively review, manage and produce relevant evidence. Kroll Ontrack, based in Eden Prairie, Minn., is a wholly owned subsidiary of Kroll Inc., the world's leading risk consulting company.


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