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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 us all.

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 size.

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 27, 2002).

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 data sets.

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 e-mail.

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 transactions.

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:
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