E-Discovery

The volume of documents in discovery can be nearly unmanageable in any case of protracted litigation. The addition of electronically stored information (ESI) can complicate the process even more. Since the onset of electronic discovery, also known as e-discovery, many attorneys have found the discovery process overwhelming. However, a rapidly growing contingent of law firms — even small firms — realizes that the right combination of litigation support software and personnel makes the process much easier and far less time-consuming.

While the law historically has been slow to catch up to technology, e-discovery is bucking the trend. The Federal Rules of Civil Procedure now mandate certain aspects relating to e-discovery. For instance, both parties must meet concerning how electronic data must be transferred. Additionally, parties may make requests for specific forms of electronic data. Many states are quickly following suit by adding e-discovery sections to their rules of civil procedure.

E-discovery is changing the discovery process mainly because of the volume of material available for discovery. No longer is it feasible to manually search documents as it is with paper discovery. Thus, the right software allows a search for specific terms in all documents and classifies those documents that are relevant to the case.

The variety of software available means there is no one-size-fits-all program. Experts in litigation support can advise which software will work best for a firm or a specific case. Some factors to consider when choosing software include:

• Ease of use. Can the legal team operate the program and take advantage of all available features?
• Foreign language support. Can the software display characters in foreign language texts? Are foreign language words and phrases searchable?
• File types. Does the program handle all file types encountered in a particular case?
• Document categorization. Will the program allow users to easily categorize information reviewed in discovery?

Many programs are available for e-discovery, including CaseMap, Concordance, CT Summation, IPRO, JFS Litigator's Notebook, LiveNote, Ringtail, TrialDirector and Zantaz. Professionals also turn to Microsoft Access to interact with customized data handling.

The development of e-discovery has, of course, yielded problems, not the least of which is inadvertent disclosure of privileged information. This is probably the biggest worry for attorneys new to e-discovery. With such voluminous records in ESI, searching all requested documents for privileged information is impossible.

Although the law relating to the production of ESI is in its early stages, as long as attorneys take reasonable measures to ensure that privileged information is not inadvertently disclosed, there is no problem getting the information back. Victor Stanley Inc. v. Creative Pipe Inc. held that the onus is on the party that inadvertently produced the privileged ESI to demonstrate that it took reasonable measures to prevent disclosure. In that case, the party could not; therefore, the judge ordered that the party had waived attorney–client privilege as to those documents.

A practical way to avoid problems relating to inadvertent disclosure of ESI is to confer with the other party while the litigation is in its infant stages. In fact, the inadvertent production of privileged ESI and the method for its return should be discussed between the parties in the initial conference relating to e-discovery matters.

Once attorneys become more experienced in e-discovery matters and handling ESI, they should find that many aspects of the discovery process are easier, despite the increased number of documents that ESI yields. This, in turn, will free up much of their time and allow them to focus on more substantive issues relating to the case.

References

Victor Stanley Inc. v. Creative Pipe Inc. (D. Md. 2008).