Peacock Tales

Volume 17, Number 4 · October 2007

E-Discovery Comes of Age

by Robert Fratto

In movies and television, we have all seen the familiar courtroom climax where an attorney hands a document to a witness and asks, "Is this not your signature?" And the witness confesses as the document is brandished in his face. Fifty years ago (or even 10 years ago) this was the only way the witness could have been confronted. If a document was shown to a witness, that document was certainly in the form of a tangible piece of paper that was typed, handwritten or printed.

Today, however, the vast majority of documents are created on a computer. Now, that courtroom scene would probably include computer monitors, digital projectors and laptops. In many cases today the documents the jury sees on the screen probably never existed on paper but only on the "virtual" world of mainframes and hard drives, and were distributed by e-mail. That event can be a contract dis- pute, a claim of harassment or discrimination, or an injury from a product. But just because you can't put your finger on it doesn't mean that you don't have to deliver it to the opposing party in a lawsuit.

This new species of evidence is called Electronically Stored Information, or ESI, and it encompasses any potentially relevant data that is stored on computers, disks, tape, gadgets and the internet. To keep up with the "virtual" status of information today the Federal Courts have created new ground rules for obtaining that information for trial. The new Rules do not so much create new rights as compel lawyers and litigants to deal with the pivotal role computers and the internet play in business and our lives. It has been estimated that ESI comprises 95 percent of all information created today.

Regardless, lawyers must include this evidentiary source when requesting documents from their opponents, instead of the customary focus on paper documents. Likewise, attorneys or their clients must not overlook their duty to disclose these sources of evidence when requested by the opposing party. The Rules' amendments make clear that discovery of ESI stands on equal footing with discovery of paper documents and require that any request for production of documents be understood to include a request for ESI. These new rules can be boiled down to four basic concepts:

• ESI is discoverable;
• Clients must preserve and be prepared to produce ESI;
• Lawyers must understand how to request, protect, review and produce ESI; and
• The courts have new tools to rectify abusive or obstructive electronic discovery.

What does this mean for the typical person involved in a suit, for it is not just lawyers who are subject to the Rules? A duty is placed on any party, once an event occurs where the party can anticipate a lawsuit, to identify the location of all relevant information including ESI. During this stage, attorneys and clients will need to list the custodians of the data, determine the time frames involved, identify the types of documents, map the client's information systems and decide whether or not forensic data retrieval is necessary.

This can quickly add up to a gigantic store of information from various sources and locations. The new Federal Rules mandate a meeting between opposing counsel to establish preservation approaches and definitions for what may be considered relevant material. This can help minimize e-discovery costs and adds structure to a potentially confrontational process. Both lawyers and their clients will have to get used to this new legal environment.