Things You Can do to Make E-Discovery a Less Painful Migraine

I’ve written before about litigation being a form of legalized warfare.  Today I’d like to touch on one of the battlefields in that war.  I’m talking about the discovery process, and I’d like to specifically touch on how “electronic discovery” or “e-discovery” has altered the battlefield.

One of the major byproducts of out digital age is the enormous amounts of data we’re creating every day.  We’re sending email back and forth to colleagues and business partners, instant messaging and texting friends and family, and saving new spreadsheets and documents at a frenetic pace.  And that’s just the easy to remember kinds of data.  Let’s not forget about all the metadata, backup files, and web browsing data we’re creating surfing the Internet.  The list is nearly endless.

All this activity creates oceans of data stored away on digital media of all forms and formats.  While we used to commonly measure large amounts of data in megabytes, we’ve quickly blown through the gigabyte level and are moving into terabytes and on into petabytes.  Whatever amounts of storage space Silicon Valley comes up with I’m sure we’ll find a way to fill it.  Nature abhors a vacuum, and people can’t help but collect and save stuff.  If you don’t believe me, check out your garage.

So, what happens with all this data when you’re involved in a lawsuit?  How can you hope to find anything in all those bytes, and how can you protect your bytes from prying eyes?  The answers are found in the e-discovery process.

Discovery generally occurs during litigation after the initial flurry of paper and court filings that kicked off a case, and generally long before that case ever makes it to the courtroom.  In the old days, the discovery process led to mountains of paper being passed back and forth between litigants, sometimes with the hope of drowning the other side in paper (sometimes this still occurs).  Paralegals and associates spent long hours burning the midnight oil reviewing documents in the hope of finding that smoking gun that would win the case.

Not surprisingly, the old rules of civil procedure had a hard time dealing with digital data and it took a while for the law to catch up to technology (again).  But in 2006, changes to the Federal Rules of Civil Procedure went into effect, and the states followed the Federal lead.  The good news (or bad news depending on your point of view) is that these rules clarify the handling of data during a lawsuit. 

Now, instead of mountains of paper the litigants are passing electronic data back and forth.  Even in this digital age, many attorneys are uncomfortable with e-discovery issues.  This has led to the development of entirely new industries to aid with the discovery process, including computer forensics and yet another legal specialty called e-discovery consulting.

Savvy litigants are adding technology attorneys specialized in e-discovery to their litigation teams to handle the enormous amounts of electronic evidence that can be harvested, preserved, documented, and authenticated during litigation.  Your technology attorney’s role on the litigation team is to work with both the main litigation team handling the other legal aspects of the case and to coordinate the efforts of the computer forensic company.

Your technology attorney works with the litigation team to handle the legal mechanics including, but not limited to, sending of preservation letters, suspending document retention and destruction policies, and handling interrogatories and depositions.  Your technology attorney also works with and supervises the work of computer forensic investigators in coordinating electronic data, analyzing electronic data, and other tasks.

Your tech attorney will often retain a computer forensic investigator to find valuable data the other side is trying to hide, and to help you come up with the data you must disclose to the other side.

Computer forensic investigators create backups of all relevant media to create a complete snap shot of the media at the time of acquisition, and then convert, scan, and index the data as required.  They then examine the contents of the backups without altering the contents in an effort to find valuable data.  Without their efforts, data can be lost over time. 

We need these forensic specialists because data is everywhere: from USBs to external hard drives, from text messages on phones to the Internet itself.  And sorting through all of it can be a nightmare without their help.

Your technology attorney and investigator often use a number of e-discovery software applications and litigation support services on the market.  These tools help ensure that your team has the capacity to process and store the huge amount of electronic data being handled.

Clients are understandably nervous about sending confidential data to opponents.  The loss of control over your company’s secrets can be gut wrenching.  However, there are a variety of tools, protocols, and best practices that can be used by your team to identify who has access to your data and when.  Your technology attorney can also help advise you on what electronic data may be privileged and how to handle such data during discovery.

Early planning is the key to offensive and defensive e-discovery.  Your technology attorney should be able to assist you with your handling of electronic data, electronic document review, data production to opposing counsel, managing any vendors or consultants you bring on board, and assisting with the technology aspects of litigation such as depositions of your opponent’s key IT. personnel.

While e-discovery can be expensive in larger cases, it’s often very cost effective.  Instead of paying teams of attorneys and paralegals by the hour to sort through those mountains of paper I mentioned earlier, computer forensic investigators can sort through electronic data for much less. 

Even if you’re not involved with litigation today, you should be working with a technology attorney specializing in e-discovery to establish record management and document retention policies.  You need to get your act together today in anticipation of future litigation.

Get your technology attorney on your team early to help ensure you are compliant with the rules of e-discovery and so you don’t accidentally destroy valuable data.  Don’t incur litigation penalties for your failure to comply with the rules of e-discovery.

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