E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

As many of us are all-too-painfully aware, technology has been a mixed blessing to both business and the law.  The ability to generate and store information electronically has allowed us to be more productive, but has increased exponentially the amount and types of documents and data we produce and store. 

In turn, this proliferation of ESI has dramatically changed the nature and the cost of litigation, and, in particular, the nature and cost of discovery.  In large-scale civil litigation, the lion's share of litigation costs stems from first-level document review:  that initial review, usually conducted by junior attorneys or paralegals, to analyze documents for responsiveness, confidentiality, privilege, and to identify and flag key or "hot" documents.   

When you're facing millions upon millions of pages of ESI that need first-level document review, do you (1) staff it with lawyers from your firm or from outside counsel, (2) staff it with a mix of lawyers and paralegals from your firm or outside counsel, (3) hire temporary / contract attorneys and/or paralegals to staff the review, or (4) outsource to a U.S. firm specializing in document review?  Now, yet another option grows in popularity:  "offshoring" or "nearsourcing" your first-level ESI review to lawyers in another country. 

Offshoring your document review to another country - like Canada, India, Israel or South Africa - has its benefits, as this article outlines, but it also poses serious risks.  Some issues to consider when contemplating offshoring all or part of your first-level review:

• How do the laws of the country to which you are offshoring treat attorney-client privilege, work product privilege, privacy, confidentiality, and ethical issues?
• What are your rights and recourse in the case of data theft or misappropriation?
• Are language issues are surmountable?
• What employee screening and training processes employed by the outside vendor to insure that the most competent, ethical individuals are working on your project?
• What quality control measures does the outside vendor employ to insure that documents are being coded correctly and key documents are not being missed?
• What processes can you put into place to quality control the work from your end?
• What security measures does the outside vendor employ to prevent misappropriation?
• What type of professional liability insurance does the outside vendor retain?
• Can you "audition" the outside vendor first, by quality checking their review of a previously-reviewed set of documents?

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If you are not already asking this question of your consulting or testifying expert, you should start.  And the answer in every case should be "no."  Many people, including experts, make revisions into an original draft document, thereby "writing over" the initial draft.  Once a draft has been written  over, the electronic version of the initial draft has effectively been destroyed.  However, electronic preservation rules apply to draft expert reports and communications, and attorneys have an ethical duty to ensure that these electronic documents are not destroyed.   

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Although the proposed Federal Rules of Evidence 502 aims at reducing the cost of e-discovery, businesses can also play a critical role in managing this process.

In an article entitled "Preparation and Communication are Key to Managing E-Discovery Costs," (published in 25 No. 22 Andrews Toxic Torts Litigation Reporter 3, December 5, 2007), Richard Friedman of Dreier LLP explains the various ways businesses may prepare to produce electronically stored information (ESI) and thereby controlling both their costs and reducing the potential for expensive errors. Some pointers--

• Adopt uniform procedures makes e-discovery a more manageable process with more predictable costs.
• Through communication and negotiation, counsels can reach agreements on the scope of electronic discovery as early as possible resulting in significant cost savings for both sides, by reducing litigation costs as well as the volume of ESI that must be reviewed.
• Identify the information that the organization collects and generates and the means by which it is stored. Organizations that lack adequate knowledge of both their inventory of information and their information technology systems risk seriously disadvantaging themselves at the initial Rule 16(b) scheduling conference and subsequent pretrial conferences.
• Limit the kinds of information that are generated on a daily basis to reduce their potential exposure or to control their storage and retrieval costs, organizations may want to prevent certain kinds of information from being generated.
• Initiate and enforce litigation holds to preserve relevant information in the event of a lawsuit. This step is necessary to prevent potentially responsive information from being routinely destroyed or deleted when there is a reasonable expectation of imminent litigation and certainly after litigation is pending.
• Take advantage of techniques and technology that will reduce the universe of ESI that needs to be reviewed, as well as what needs to be produced in litigation.

While it remains to be seen whether Rule 502 will be adopted, businesses and law firms alike can certainly follow Mr. Friedman's advice on e-discovery cost control.

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In their book "Evaluating the Electronic Discovery Capabilities of Outside Law Firms: A Model Request for Information and Analysis," authors Jeffrey Ritter (a recipient of the American Bar Association’s 2004 Cyberspace Law Excellence Award) and Karen Worstell (Chief Information Securty Officer at Microsoft) assert that the greatest economic risk companies face with electronic discovery is choosing the wrong law firm. Conversely, they explain how law firms can utilize the Model RFI (Request for Information) to assess electronic discovery readiness by evaluating their resources, services and tools to better serve their clients.

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When a client is hit with a request for electronically-stored information, it is useful to think globally about what has been set in motion--a discovery process that will extent over some period of time and encompass some universe of information.  There are five major steps that the client will need to be prepared for:

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This really happened recently.  I was having a Rule 26(f) conference and, as I am supposed to, I said the words (gasp) e-discovery.  The response?  The response was to suggest that they were already contemplating that I would be asking for far more than what is reasonably necessary and that they already anticipated there would be problems.

So they were objecting before the discovery was even served at the mere mention of the word "e-discovery"?   Do they already have the response to my first motion to compel drafted? (Perhaps I should serve such a motion to compel with the requests and streamline the whole process).

No doubt this is the strategy many will employ, but believe it or not, in some cases, the issues are fairly discreet, the list of players reasonably short, and e-discovery is not that hard.  Let's all remember to object in good faith.

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Dates can be crucial in litigation. Cases are won or lost on whether the right things happened at the right time. Accordingly, we often use documents to construct our chronologies early in the case and move for summary judgment. But dates on electronically stored documents may not always be what they seem. For example, at first glance, one may assume that a date on an electronically stored document is the creation date or distribution date. Maybe its far from either.

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