May 22, 2013 Articles

Strategic Use of E-Discovery Counsel to Manage Risk and Cost

Complex and rapidly changing law and technology make e-discovery counsel a wise investment, if not an ethical requirement.

By Jeffrey C. Sharer and Colleen M. Kenney

Technology has forever changed civil discovery. Gone are the days when a requesting party could reasonably ask for “all documents related to” a dispute, and a responding party could reasonably expect to meet that request with a thorough search of its file room and perhaps offsite storage. Nearly all information created today is created in digital form, with dizzying arrays of technologies creating dizzying arrays of data types, at rates and in volumes that continue to grow geometrically, with an estimated 89 billion business emails sent each day and large organizations now measuring data stores in petabytes. At the same time, advances in digital forensics, information retrieval, and other disciplines have yielded a plethora of tools that make it possible to conduct discovery in even the largest cases in a manner that is defensible, timely, and cost-effective. Put simply, technology has affected discovery so profoundly that lawyers today cannot ignore electronic discovery any more than the eighteenth-century Luddites could ignore the Industrial Revolution.

Not surprisingly, the rapid growth of technology and its far-ranging impact on civil discovery have been accompanied by similarly rapid growth in the law. Among other developments, the Federal Rules of Civil Procedure have been through one round of “e-discovery amendments” and appear headed toward another; “e-discovery pilot programs” and other local initiatives have been adopted in numerous federal and state courts; the ABA has amended its Model Rules of Professional Conduct “to reflect the realities of the digital age”; and Congress entered the fray with Federal Rule of Evidence 502. At the same time, case law on e-discovery issues has grown from tens of decisions in a year to hundreds (if not thousands) per year, on issues ranging from the common-law duty to preserve evidence and related issues of spoliation and sanctions; to proportionality, cost-shifting, and form of production; to whether and under what circumstances machine learning algorithms and related technologies can be used in legal search and review; to name just a few.

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