Print This Article

There’s really no doubt that electronic discovery, with its countless variations in synonyms and acronyms, is the hottest topic of discussion in both legal technology and the day-to-day practice of litigation today. We wanted to learn whether it is still something people talk about or whether it is now becoming an essential part of litigation in 2004. So, we went out and rounded up as many experts with real world experience as we could – lawyers, consultants, computer forensics experts, electronic discovery software and services vendors, bloggers and other experts. I’m sure that you will recognize many of the names. In fact, we might well have the great assemblage of intellectual firepower ever focused on the subject of electronic discovery in one place at one time.

Here’s our list of participants, divided into two categories:

Lawyers (some of whom may also be consultants)

Craig Ball
David Goldstone, Skadden, Arps
Denise Howell, Reed Smith
Joe Kashi
Alex Lubarsky, Alextronic Discovery Blog
Mark Sableman, Thompson Coburn LLP
Art Smith, Husch & Eppenberger, LLC
Mark Yacano, Wright, Robinson, Osthimer & Tatum

Consultants, Vendors, Experts (some of whom may also be lawyers)

Rick Davey, EDDix, LLC, Managing Director
Michael Kraft, Kraft, Kennedy & Lesser, General Counsel
Chris Kruse, CaseCentral, President and CEO
Sharon Nelson and John Simek, Sensei Enterprises, President and Vice-President
Lee Neubecker, Forensicon, Inc., President and CEO
Kristin Nimsger, Kroll Ontrack, Inc., Senior Director, Legal Technologies Product Line
Chris Paskach, KPMG, Partner
Derek Schueren, Recommind, Director of Legal Solutions
Jon Sigerman, Summation Legal Technologies, President
Skip Walter, Attenex, Chief Technology Officer

Full biographies are set out at the end of this article, or you can simply click on a name to see the biography.

I am simply going to ask some of the questions that lawyers most commonly ask me when I talk to them about electronic discovery. Then, I’ll step back out of the way and let our panel go to work. After we discuss an issue, I’ll then wrestle the floor back from this group and move them on to the next question. I can see that they are ready to go.

Let’s start by getting to the heart of the electronic discovery issue for most lawyers today. Sleeping Monster? Roaring Tiger? Or just more hype? How important is electronic discovery in the everyday practice of today’s litigator? There are a lot of lawyers in this group – I bet that we get a few “both” answers. Chris Kruse, I know that you have some attention-getting Statistics about how we now use electronic documents. Go ahead and get us started.

Chris Kruse - Electronic discovery has become an indispensable tool for major litigation practices as they come to terms with the enormous amount of electronic data in the world today. The volume of electronic documents is exploding! e-mail in particular is growing very rapidly. IDC estimates that 31 billion person-to-person e-mails were sent each day in 2002 and that number is expected to increase to 60 billion per day by 2006 (October 30, 2003). More and more documents today exist only in electronic form, too. Recent studies show that 80% of all corporate information is now digital – and a whopping 93% of all new corporate information is presently created in digital form (www.onlinesecurity.com in “Compliance Issues Facing Business Today, June 16, 2003). The rapid growth in electronic documents and the high percentage of data that exists only in electronic form makes electronic discovery crucial for lawyers as they aggregate, cull, review, and produce this enormous amount of electronic data.

Craig Ball – It’s critically important. It’s the Stirring Monster. E-discovery’s been slow to take hold in everyday practice, but everyone uses computers and nearly all documentary evidence is born digitally. Lawyers can’t walk away from 2/3rds of the evidence or turn a blind eye to its metadata. Judges are starting to “get it,” too. Intelligently and aggressively pursued, e-discovery lets you eat your opponents for breakfast.

Rick Davey – Electronic discovery is both the sleeping monster and the roaring tiger. Cases today can and will be effected by digital discovery...and guess what... more and more cases will have EDD needs as the digital world at large becomes more complex and more electronic and as cases size using EDD become smaller.

Michael Kraft – I believe it is both a "Sleeping Monster" and "Roaring Tiger." It has out distanced paper in volume and clearly is not fully nor properly understood by the bar or the judiciary. For the most part, people still deal with litigation much the same way they always have but just throw more bodies at the tasks. The planning, preparation, and costs associated with proper procedures for handling discovery today are still more reactive than proactive. This is not only important, it is essential if you are to do a complete job for a client.

Chris Paskach – Overall, KPMG would classify the electronic discovery industry as a “Roaring Tiger” for the next two or three years. Beyond this point, we see the industry leveling off as companies become more proactive in document retention and records management and adopt document analytic technologies that focus on concept mapping in native file formats.

Denise Howell – It's the tiger that mauled Roy Horn. It's extraordinarily important. Digital information endures, sometimes against the most pointed of countermeasures. Lawyers who know how to ask for and get it will win cases.

Joe Kashi – Very few litigators yet think in terms of electronic discovery for bread and butter cases for the average sole practitioner – the usual divorces, auto accident, slip and fall, and non-white collar criminal cases. That's probably 80-90% of the work for most non-big firm lawyers who are not handling major business cases (where 90+% of records are natively kept electronically).
So, in the short term, it's probably a tiger only for people handling business cases. In five years, though, it should be quite significant for many more lawyers as the average consumer starts to retain more and more records in electronic format.

Mark Sableman – I think a lot of cases will still be litigated without any electronic discovery for years to come. I don’t see a lot of electronic discovery popping up in collection cases. In other kinds of cases – U.S. v. Microsoft–like antitrust cases, office employment discrimination cases, and technology-based cases like Internet and software cases – it will be commonplace. In the cases in the middle, lawyers who are willing to get into the electronic discovery foray may make the difference. Lawyers who understand electronic discovery issues, who jump in and undertake the time and effort to identify and explore electronic discovery, are going to find material helpful to their cases – and leave their adversaries back in the paper document dust, wondering what happened to them.

Kristin Nimsger – E-Discovery is part of the every day reality of litigation today. It is not just a peripheral issue; it could potentially mean the difference between winning and losing your case. And it’s just not in the eventual discovery of certain information that could lead to a favorable – or not so favorable – decision. Having an intimate and thorough knowledge of the relevant e-discovery rules is an important way to ensure that the necessary information and data are preserved should litigation ensue. But with no clear federal standard as of yet, and with states only recently reacting to this paradigm shift of evidence, it’s becoming more difficult for litigators to recognize potential practice hazards. In fact, the activity coming out of the courts and the different judiciary and rules committees highlight the fact that it’s becoming increasingly important to reign in the different standards and to help promulgate and codify some certainty in the discovery process. It should be no wonder that the proliferation of e-mail, word processing software, laptops, faxes, databases, and spreadsheets has led to the growing importance of e-discovery in the way businesses and attorneys conduct business.

Mark Yacano – E-discovery remains a sleeping monster. While obtaining and producing e-discovery has received attention in complex commercial and mass tort litigation, many lawyers in the trenches are unaware of the growing body of e-discovery law and have no functional grasp of electronic data issues. My practice is split between a traditional trial practice and management of our firm’s litigation support consulting practice. Consequently, I encounter attorneys both as an adversary and as a consultant. Too many of the lawyers I meet are not yet positioned to address the basic issues presented by e-discovery, or to reconcile electronic data with traditional paper discovery.

Michael Kraft – From the Sleeping Monster point of view: Litigation partners would not sleep well at night if they truly knew how hap-hazard and reactive their electronic document review and discovery process is today. No quality standards or procedure to guide staff, too many tools and real expertise on none, people on the team who do not understand what you should and should not do with electronic documents. It is a situation waiting for just that right case to catch that one person on the staff off guard so that they miss something critical and then . . . .

Sharon Nelson / John Simek – Electronic discovery began as a slowly rising tide which has turned into a tsunami. You can no longer find a federal court litigator who doesn't deal with electronic discovery issues on a regular basis. In those state courts located in metropolitan areas, electronic discovery is on the rise, and at a steady pace. It is only in the more rural areas, where law has been practiced the same way for the last century, that e-discovery is still a new (and foreign) phenomenon. Our prediction is that, in five years' time, not even those lawyers who wish they had never heard of e-discovery will be able to avoid integrating it into their practices.

Jon Sigerman – Electronic discovery is becoming very important in the everyday practice of today’s litigator. I base this conclusion on both my experience as a practicing litigator and as President of Summation Legal Technologies, a leading developer of litigation software. As an attorney, I’ve seen first hand how electronic discovery can make or break a case. A few years ago, before I retired from my litigation practice to devote full attention to Summation, I defended a high-exposure, volatile employment case. Our defense rested almost exclusively on electronic evidence we found on the company computer used by the plaintiff. I had an inkling to search for certain information on that particular computer, which I believed had been intentionally deleted by the plaintiff. I would never have come up with that hunch (really an educated guess) without having had a priori knowledge of basic computer storage forensics. I knew that the mere act of deleting files did not actually delete the content of those files until the computer allocated newly created files to that same storage media area. My inkling panned out to where I found case breaking evidence that would have otherwise likely been over-written in the ordinary course of business. In this case, it was essential that I had an understanding of electronic evidence forensic landscape, in order to have formulated a plan to pursue this time-critical source of key evidence. As President of Summation, I’ve seen an increasing demand by litigators for software to accommodate electronic discovery. I am restating the obvious when I say much information that potentially affects litigation, regulatory matters, and basic risk management originates and exists only in digital form. Managing native document files along with transcripts, scanned images, and coded abstracts has become so important to a substantial segment of Summation’s client base, that we have expended substantial resources in adding the effective handling of electronic evidence as a component to our products.

Alex Lubarsky – As an "EDD-head" running a daily EDD blawg called Alextronicdiscovery found at www.discoveryresources.org/ (how is that for a shameless plug right off the bat?) and a litigator to boot, I am admittedly hopelessly biased. That being divulged, I nevertheless maintain that EDD is now a non-optional, daily component of any litigator worth his or her salt. Not unlike gossip in the break room, daydreams of spiking the conference room with Whoopie Cushions just prior to the start of the next partner's meeting and Googling when you should really be using Lawcrawler, the need to review your client's computer files (and get at those of the opposition) is a fact of life. If anyone ever wanted to know what I think of something or somebody, don't bother deposing my neighbor or hoping that I will respond favorably to a request for an admission ... that is not likely to show my true color. You wanna know what I truly, truly think? The answer lies somewhere in my e-mail sent items box or possibly in a Word document nestled away in some remote subfolder. When haven't we e-mailed or written about something that really gets our goat?

Skip Walter – It often depends on the type of litigation. Large, “pattern-based” litigation—such as product liability or anti-trust—is more likely to involve large amounts of electronic information. And while not every case may involve electronic discovery, it’s critical that every litigator understands the basics for the cases that do.

Art Smith – Virtually every request for production I have seen includes a request for electronic documents in those all-inclusive definition sections. The difference today is that lawyers are beginning to realize that there can be a gold mine out there in electronic data. The real challenge, however, is figuring out what to do with it when you get it. In every commercial case, there is a place for electronic discovery -- if the parties can afford it. e-mail is the primary means of communication today among many businesses; a lawyer who fails to insist on getting e-mail (in some electronically searchable form) may be neglecting one of the most important avenues of discovery today.

David Goldstone – Sophisticated use of electronic discovery is simply an essential part of the skill set of any business litigator. Ignorance of capabilities of electronic discovery could limit your ability to effectively represent your client, could annoy the judge, could make litigation that much more contentious, and could expose your client to unnecessary expense.

Alex Lubarsky – Today's clients are savvy. They understand that they need to get the other side's e-mail messages, word processing and spreadsheet files (amongst others) to get the "real story." A request for electronic evidence, is, therefore, key. A litigator that does not ask for such evidence (and who was not handed a smoking gun document on a silver platter) via an electronic data discovery request is just plain foolish. Of course, for every astute lawyer out there screaming "show me your metadata" an equally savvy attorney must be gearing up to review the requested electronic data to make sure privileged or irrelevant/nonresponsive documents are not handed over to the enemy. It is a cat and mouse game but today it’s the most important game in town.

Lee Neubecker – Most smoking guns don't exist in the suspect's “My Documents” folder. Perpetrators of fraud and other economic crimes are fast to delete electronic evidence of their wrongful activities. If you simply rely on examining e-mails and files that exist on a computer, you probably won't find much. Only with a computer forensic analysis can you examine the hidden areas of the hard drive of which most people are unaware. Juicy details such as web browsing activities, recent Hotmail and Yahoo! e-mails plus a variety of other information, including what was recently deleted can be found using a computer forensic specialist. Today’s litigator needs to remember that smoking guns are most likely to be in hidden areas of the hard drive that only computer forensics experts can uncover.

John Sigerman – Interestingly, the demand for eDiscovery capabilities is relatively uniform over the firm size spectrum, including the ability to search electronic documents, e-mails and their attachment in their native file formats; quickly display the parent-child relationships in e-mails (the linking of attachments to the parent message); convert native files to images to facilitate redaction; and produce electronic documents in various formats.

Derek Schueren – Electronic discovery simply means the discovery of electronic evidence (e.g. e-mails, Word docs, etc) in a litigation case, as opposed to discovery based purely on paper-based documents. Electronic discovery is thus no more than an evolutionary step forward in the world of discovery. However, as with all major innovations, there come major changes and major opportunities one can exploit. This is the critical challenge and/or big opportunity (depending on how you look at it) that law firms and lawyers must face. I believe it will be those lawyers that can take both their superior lawyering skills and their superior understanding of electronic evidence who will thrive. Those lawyers that still print paper documents out and don't understand electronic discovery will eventually become dinosaurs. After all, more and more information is coming out in electronic form and without the knowledge of how to deal with this electronic evidence, lawyers will not be able to effectively compete in the courtroom. But remember, if you are not good at the law no amount of knowledge regarding e-discovery will help you. E-discovery gives a lawyer an edge but you still need to know how to try the case.

Virtual Roundtable Discussion Continued:
1 2 3 4 5 6 Next »