February 2007

Has electronic discovery impacted your practice? If so, what do you think of it?

“As an older lawyer, it has been a challenge, frankly, to get up to speed on electronic discovery. I am very much looking forward to the Section ’s E-Discovery Institute in March 2007.”

“I actually did find a smoking gun email, but not in the other side’s documents. In searching the computer and email files of a former (disloyal) employee, I found a very hot document that helped to bring the case to an early resolution.”

“Electronic discovery is only as good as the other side’s vendor can make it, and there seems to be no way to control who that vendor will be. For example, I’m involved in a very large case where we trusted the plaintiff to properly run carefully constructed electronic searches and to deduplicate the document production. What the plaintiff produced, though, was a mess. Millions of pages of documents—a huge percentage of which were irrelevant, missing attachments, and duplicates! In response, the plaintiff basically shrugged and said ‘we did it the right way’ even though it was clear they hadn’t. It took a lot of time and money to sort out the plaintiff’s mess.”

“Electronic discovery is just another way for obstreperous lawyers to spawn discovery disputes. You produced the document in hard copy, but it didn’t show up in the electronic version? Motion for sanctions! The other side produced an email to your client, but your client didn’t produce it? Motion for sanctions!”

“Electronic discovery is incredibly important. We place a lot of trust in one another to follow our ethical obligations and to produce responsive documents. Electronic discovery is a backstop against the possibility that someone is spoliating evidence by deleting documents.”

“In this day and age of communication by email, with probably only a small percentage of them making it to hard copy printouts, how can you not search for electronic discovery?”