Editor’s Note: When John Tredennick
tossed me the editorial car keys for this month’s
issue, I decided that I wanted to try something new that
(1) was big enough to capture the importance of electronic
discovery and (2) took advantage of our webzine format.
I decided to try a roundtable article, but one with a
very big table and lots of seats, where a group of experts
could talk about electronic discovery without word limitations,
page constraint, style guides and the passage of months
before print publication. I wanted to just let them talk
so that we can all learn from them. In a webzine, you
get to try new things and see if they work better than
the paper ways. This article succeeded well beyond my
expectations because the participants did such a great
job and were extremely generous in sharing their insights
and tips. I think that you will agree with me that you
will not find any better practical discussion of the real
world of electronic discovery than what you will read
in this article. Best of all, it’s a fun article
too. If you hand me the car keys, you know that I want
to have some fun while I’m driving. – Dennis
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
Lawyers (some of whom may also be
Goldstone, Skadden, Arps
Howell, Reed Smith
Lubarsky, Alextronic Discovery Blog
Sableman, Thompson Coburn LLP
Smith, Husch & Eppenberger, LLC
Yacano, Wright, Robinson, Osthimer & Tatum
Consultants, Vendors, Experts (some
of whom may also be lawyers)
Davey, EDDix, LLC, Managing Director
Kraft, Kraft, Kennedy & Lesser, General
Kruse, CaseCentral, President and CEO
Nelson and John Simek, Sensei Enterprises, President
Neubecker, Forensicon, Inc., President and CEO
Nimsger, Kroll Ontrack, Inc., Senior Director,
Legal Technologies Product Line
Paskach, KPMG, Partner
Schueren, Recommind, Director of Legal Solutions
Sigerman, Summation Legal Technologies, President
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
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
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
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: