Many lawyers dismiss electronic discovery
as something only for “million document cases”
and big law firms? Are they right, or are they in for
a rude awakening? Do you have examples of effective use
in “small” cases? Craig Ball, do you want
to start us out on this one?
Craig Ball – Rude awakening, to be
sure. Your clients use computers—at home, at work,
on the road, leaving voice-mail, opening card key doors—everywhere,
every day. The duty to preserve and produce digital
evidence isn’t just for Microsoft and Ford. Mom
& Pop have to do it, too. Can your client protect
digital evidence when a preservation letter arrives?
Will the cost to do it or risk of spoliation affect
the outcome? It’s not just massive document wars.
Cases of any size boil down to a few key exhibits. Whether
these golden needles hide in a big or small haystack,
if they’re digital evidence, you’re going
to need electronic discovery to find them.
Rick Davey – Dead wrong... As the
tools and services continue their development, the costs
of the tools will become less, while services cost will
remain high thus allowing both smaller law firms to
use EDD and to make it cost effective for larger firms
to utilize EDD, especially if they perform this in-house.
A prime example of this is the Connecticut divorce case
where a judge
ordered a personal laptop to be held for discovery.
Additionally, corporations will be making it easier
(for discovery) with pro-active methods of recording
the collections of the corporation before the need arises.
Denise Howell – Rude awakening.
I assume now you're talking about electronic management
of documents that may have been produced in paper form,
as well as digital items produced in discovery. As search
technology improves, the need for exorbitant expense
and hand coding will disappear. What if you could reliably
Google your discovery document universe? That day is
not far off.
Kristin Nimsger – At the onset
of 1990’s, it appeared that if the electronic
discovery game were to be played, it would be played
only by behemoth law firms with well-funded clients
engaged in protracted and complex litigation. However
in the last few years, law firms with David-sized cases
are encountering Goliath-sized electronic evidence questions
with great success, in part due to scalable technology
solutions, which are making e-discovery more accessible
in average-sized cases. E-discovery technology can quickly
and cost-effectively winnow the volume of data to be
reviewed and produced. A great example of the advancing
“accessibility” of e-discovery is the work
that Kroll Ontrack did in Murphy Oil USA, Inc. v.
Fluor Daniel, Inc. – the case involved a
contract dispute in Louisiana between two companies
– electronic discovery technology was effectively
used by the parties to restore, search, and de-duplicate
a sample of nine users’ e-mail from backup tapes.
The relatively small production resulted in about 15,000
pages of potentially responsive documents, took a couple
days to complete, and cost considerably less than other
proposed methods of reviewing and producing the data.
According to one of the parties, e-discovery made a
distinct difference in the resolution of the matter.
Derek Schueren – E-discovery
can make litigation more efficient – it is not
dependent on the size of a case. Not only can e-discovery
be easier to run through than paper documents, but also
there often exists information and relationships that
would be impossible to find without the assistance of
software. While paper is not going away anytime soon,
electronic information continues to increase at an astonishing
rate. Even small cases will need to have lawyers who
understand electronic discovery. e-discovery affects
Michael Kraft – The problem
is "small document" cases can easily evolve
into "million document cases" before you know
it. Much of the preliminary work today is based upon
triage of datasets that are relevant or responsive while
seeking to set aside privileged or work product information.
As cases progress and more is learned about them, more
information within the client's control may need to
be reviewed and produced. It is much better to employ
a system for this work that is accordion-like, i.e.,
that can expand and contract to deliver the functionality
necessary for the requirements of the case. Carefully
planned procedures coupled with the right tools can
deliver results that easily justify the cost of technology
and the time spent creating the process. We have been
assisting a number of firms with analyzing these processes
and selecting the right tools for their approach to
litigation in this electronic world. Stated another
way, it may be worthwhile to learn the power of these
tools on several "small cases" so that you
have a procedure in place for the large cases. I believe
that if you have the tools in place, you will ultimately
be in a position to a deeper understanding of the matter
at hand in a much shorter time frame. This will result
in more time for analysis and the crafting of argument.
Skip Walter – We deal with
three tiers of cases: small (under 10 Gigabytes), medium
(10GB to 1TeraByte) and “super size” (more
than 1 TB). The use of document analytic technology
for the very large and medium sized is critical to keep
risk and expense low. That said, many law firms and
corporations are finding that the same tools are just
as important for “snapshot” reviews. That
is, reviewing information from the most obvious custodians
during the early strategy setting part of a case to
assess risk quickly. The technology is there to make
you more productive, regardless of a particular matter’s
Chris Kruse – The power of
electronic discovery in a “small” case was
demonstrated in a DOJ Second Request document production
we recently completed. The acquiring company needed
to aggregate, cull, review, and produce 44 gigabytes
of data – a little over 200,000 pages –
within 10 business days to meet a DOJ deadline. The
review may well have been impossible using paper-based
review methods. However, we were able to aggregate,
cull, convert, and post all 44 GB of data to a web-based
document repository for the law firm within 6 days.
Using web-based review tools and a legal review team
of 40 attorneys spread over four offices, the entire
review and production was completed within two weeks,
meeting the DOJ deadline and allowing the merger to
move forward and close successfully.
Jon Sigerman – My knee-jerk
response to this question is to answer it with a question:
Are big corporations the only place where e-mail is
used in business? It would strike me as malpractice
not to include e-mails and attachments under the definition
of documents in a document production request, even
in cases where the exposure is less than a million dollars.
On the other hand, deep forensic exercises are more
often than not incredibly expensive. Examples of such
expensive exercises include conducting a needle-in-the-haystack
sweep through unallocated disk space to find smoking-gun
information shards from deleted files or making expensive
forensic clones of hard-drives in order to become bulletproof
against claims of spoliation. As such these undertakings
may make sense only for larger cases.
Mark Yacano – Companies of
all sizes create and store electronic data as a routine
business practice. Hence, it is difficult to imagine
corporate or business litigation without e-discovery
issues. Likewise, with the proliferation of home computers,
e-discovery is likely to play a larger role in smaller,
more personalized cases. A lawyer, whether a partner
in the biggest national law firm or a sole practitioner,
who ignores e-discovery under the theory that the case
is too small or opposing counsel too unsophisticated
is engaging in a game of high-stakes poker with opposing
counsel and the court. The blind-eye approach is an
affront to established e-discovery law, one that won’t
go unpunished much longer.
Chris Kruse – The alarm clock
is already ringing! Electronic discovery is important
regardless of the size of the case. Large and small
law firms, alike, will miss the boat if they don’t
jump into the electronic discovery waters. Just think
about your personal e-mail program, which can easily
contain more than a gigabyte of data. The cost and time
savings alone justify using electronic discovery versus
paper-based approaches to aggregate, cull, and review
the messages in such cases. For example, Greg McPolin
in the New York Law Journal states that paper-based,
manual review costs an average of $2.20 per page while
electronic discovery costs only $0.25 per page (“E-Discovery:
A Common Term That is Little Understood”, January
Chris Paskach – Since most of
today’s business communications are done electronically,
relevant case information will likely reside in electronic
format. While lawyers may not need to become subject
matter experts on the topic, it is important for counsel
on any size case to understand the key phases of electronic
discovery: Preserve, Pare, Process, Produce, and Prepare.
When the appropriate technologies are applied at the
right “phase” of electronic discovery, attorneys
can save clients as much as 50 percent off traditional
approaches such as keyword searching then TIFF’ing
or PDF’ing. Electronic discovery is not exclusive
to those “million document cases,” especially
when document analytic tools are utilized to quickly
identify responsive and non-responsive documents in
native file format.
Here’s an example of how it works: by performing
a first pass native-file review using document analytics
during the “paring” phase, our clients are
able to isolate and separate often 70 percent to 80
percent of non-responsive documents. By “processing”
— or converting to TIFF or PDF — only the
20 percent to 30 percent of the responsive data sets,
clients of all sizes and budgets are benefiting from
both a cost and quality perspective. Next, when the
processed documents are loaded onto a traditional discovery
management tool for “production” and “preparation”
for trial, attorneys are benefiting from the quality
and time savings of only having to deal with the relevant
Lee Neubecker – You don't need
to spend tens of thousands of dollars to utilize electronic
discovery and computer forensics. For example, if you
are defending an employer against a wrongful termination
lawsuit, it may be worth having a basic computer forensic
review of the former employee's computer conduct. For
several thousand dollars, you may be able to find embarrassing
Hotmail or Yahoo! e-mails to show the former employee.
If the employee is cheating on their spouse or has engaged
in the workplace pursuit of pornographic entertainment,
you may have a quick end to your case by showing printouts
of these materials to the former employee. The key driver
of electronic discovery pertains to how many hard drives
you plan to examine. Starting first with the most likely
computer will minimize cost and allow you to determine
if a more in depth review is warranted.
Joe Kashi – Not really, my experience
has still been that the bigger cases are the ones likely
to have critical records in electronic format. The one
case in which I am currently involved includes a seven
million dollar judgment and 46 federal criminal counts.
Mark Sableman – I had an Internet
copyright infringement case where only a handful of
documents were produced on each side. But I represented
the defendant and we obtained the logs showing all access
to the plaintiff’s website. These logs had to
be produced on CD-ROM – each day’s log ran
more than 1500 pages. But they were easy to search using
the Windows “find” function (Control-F).
Those searches demonstrated that my client only accessed
the plaintiff’s site on a few isolated occasions,
thus effectively rebutting the plaintiff’s “willfulness”
argument. This was electronic discovery, and it was
very important to the case, but it wasn’t anything
fancy. The costs were minimal and no experts were involved.
I searched the CDs myself and found all the relevant
information in an hour or so.
Art Smith – I am using electronic
discovery in a multi-million dollar case and at the
same time in a case in which only three e-mail messages
are in dispute. Electronic discovery is really just
short-hand for a bag of tools that can be available
and useful to litigators in virtually any case, given
the write document request, an understanding (or knowledgeable)
judge and a sufficient budget to handle the project.
Oh yes, having a good consultant helps, too.
David Goldstone – Today, every
business uses computers and e-mail. While there are
some cases that do not utilize electronic discovery,
the vast majority of business cases do. If the volume
of electronic documents is relatively small, the documents
can certainly be much easier to review and manage than
if the volume is large. But even for small businesses
matters, smart use of electronic documents can make
a big difference in litigation. The most common example
in so-called "small" cases comes from forensic
analysis of deleted files on the hard drive of one of
the parties - we all know stories of how important that
evidence can be.
Craig Ball – Small case examples:
An air bag computer stores speed and braking activity
for the five seconds before a crash. How about “deposing”
the car in a disputed red light case? Spouses in failing
marriages often seek solace on the Internet or leave
digital footprints of an affair. Computers are instrumental
in proving criminal activity: web surfing to plan a
crime, spreadsheets tracking drug sales, fencing stolen
goods via e-Bay. Much of my work of late is in ferreting
out evidence of customer data and trade secret theft.
That data’s not leaving the building on paper.
Today, it’s going out by disk, thumb drive and
Skip Walter – A recent example
of success with a relatively small amount of data was
a situation we encountered with a global textile manufacturer.
The company suspected two of its sales people of committing
about $50,000 of fraud. Their law firm and accounting
firm estimated that it would cost between $50,000 and
$100,000 to review the e-mail of the suspected sales
representatives. We suggested that the sales manager
could review the same information for about $10,000.
He came in with his four or five keywords to search
through the information, but we suggested he browse
through the automatically generated concept maps. I
wished I had a video camera of his investigation. Within
twenty minutes by scanning through the concept list,
he encountered the names of several customers that he
knew were not customers of the firm. Twenty minutes
later he had uncovered several million dollars of problem
Alex Lubarsky – I recently
spoke to an old law school classmate who was working
on a worker's compensation/wrongful termination crossover.
His client was a cashier at a corporate cafeteria, so
we're not talking about Oracle v. Peoplesoft here.
The case was worth high four figures and comped meatloaf
on rye ... if even that. A basic e-discovery request
turned up a "deleted" e-mail message in which
the kitchen manager acknowledged that the register may
indeed aggravate plaintiff's carpal neurological problems
yet he resisted ordering a relocation to another position
because "she's the only one that can work that
damn register during the lunch crowd onslaught."
Hence, the company resisted a proper transfer and when
the plaintiff could not function due to ever increasing
pain, they attempted to terminate her instead of accommodate
her. Does anyone really believe that damning sentiment
in the e-mail would have made it into the record in
the absence of an electronic evidence request for production?
Sharon Nelson / John Simek –
If lawyers approach their handling of small cases thinking
e-discovery is not useful, they are certainly in for
a rude awakening, probably at the hands of their opposing
counsel. For prices ranging from $3,000-$10,000 total,
we have proven in small cases the theft of proprietary
information, embezzlement, adultery, dissipation of
marital assets, breach of fiduciary duty, tortious interference
with business, violation of employment agreements, unfitness
at a parent, possession/distribution of child pornography,
creation of a hostile work environment, fraud, interception
of electronic communications, unauthorized intrusion
into computer systems, and identity theft — just
to name a few! Obviously, any attorney who believes
e-discovery is only for mega-cases needs to pull their
head out of the sand.
Michael Kraft – Can you think
of any other area where we only use the right tools
for the job some of the time and do it completely differently
for everything else? Even if the firm has mostly smaller
cases, they are perfect for learning the tools to a
great level of depth, reviewing and improving firm procedures,
and ensuring that the process and all of the technology
truly works for everyone. Then you can say you are truly
ready for the big case that comes along. I sure would
not want to be the client with the big case if you told
me that you are going to use technology that you do
not normally use, your staff do not know if very well,
and you will follow procedures that you only use once
in a while to ensure that nothing important is missed.
Virtual Roundtable Discussion Continued: