Print This Article

Michael Kraft – I think we have not yet seen an appropriate way to address all the issues that electronic discovery brings to bear. There’s the whole issue of native files and what meta data exists. Can you legitimately clean documents as a matter of course so that what you deliver is representative of the result rather than thoughts and negotiation along the way? Is anyone focused on the bigger picture of record retention so that in a litigation you are able to assemble a relevant subset of your record store pertinent to the litigation at hand? A clear understanding of what it takes to ensure that electronic files have not been changed by either side? How can you properly deal with redaction and privileged information so that searching will not inadvertently deliver results that would otherwise have been avoided had the data store been paper? What is privileged and what is attorneys' work product? What is reasonable in terms of responding to demands from the point of view of time and who should bear the costs? It is going to be an evolving area for all of us. Every time a new electronic tool becomes available, it potentially introduces a new dimension for the legal profession to have to deal with in EDD. Bottom line, this is an area that will continue to evolve. Are firms prepared to invest in the right education and tools to properly keep up and stay competent is the key question.

Sharon Nelson / John Simek – Education is a never-ending process and we are only beginning the process. Clients, judges and lawyers are all learning, most of them slowly and painfully. Worst of all, this field is so complex and changes with such rapidity that what we learn today may not be valid a month from now. Many cases involving e-discovery have boiled down to battles between the experts, and that trend is likely to continue.

Art Smith – Even as this roundtable assembles, new rules are being constructed for the courts to recognize electronic discovery. One problem, though, is that the rules are not coming around fast enough, and even in those new rules there is enough ambiguity to go around and permit lawyers to engage in the battle of the briefs. To me the single biggest problem is the challenge that large corporation faces in dealing with accusations of spoliation. Business can't stop its processes; yet we know every time its computers are used, potentially relevant evidence is destroyed. The courts need to find a middle ground and take business out of harm's way. This is what my crystal ball discloses as a major battle ground in the future.

Craig Ball – The good news is that it’s getting better as lawyers and judges learn more and developers see the market for improved tools and more secure, better organized systems. But, it will take time. Gauging e-discovery at the start of the 21st century is like comparing horseless carriages to horses at the turn of the 20th century. Horses fared pretty well in a world designed for them and cars were the misfits. We will get past paper-centric discovery as well, and e-discovery will be where every lawyer lives.

Denise Howell – I don't see the fundamental discovery principles and issues changing based on the medium used to record the information. You need to know what to look for, how to look for it, and how to manage it. More critical than the discovery rules are the regulations and policies governing record retention, and the degree to which they keep up with emerging technologies.

Mark Yacano – The sheer volume of developing e-discovery issues may overwhelm many lawyers and judges new to e-discovery. The “e-meet-and-confer” offers help. Similar to status and scheduling-type conferences, the e-meet-and-confer brings parties together early in the case to discuss the preservation, review, and production of electronic data. Such conferences ensure that counsel address and resolve e-discovery problems. Likewise, a procedural mandate to participate in the e-meet-and-confer forces counsel to educate themselves on e-discovery matters. The recently published Sedona Principles (Principle #3) acknowledges the importance of parties conferring on e-discovery matters. Although a good start, involving the court may prove more effective. The conference identifies any pressing e-discovery issues for the judge. Moreover, judicial involvement generates much needed case law on e-discovery matters.

Kristin Nimsger – One of the new developments that has evolved directly from the growing role electronic discovery plays in litigation is the need for third-party experts to help demonstrate the burden and expense associated with the production of electronic documents. The growing role that technology has played is beginning to require lawyers to rely on e-evidence experts in support of basic arguments relating to both discoverability and cost allocation. This is particularly true in light of evolving common law, and newly proposed FRCP revisions which rely on concepts such as “data accessibility” to guide basic legal decisions about relevance, discoverability, and costs. While the use of a non-e-evidence expert in most cases is somewhat rare, there is an increasing trend to appoint a special master or third party neutral in cases involving discovery of electronic documents. While the amendments last December identified the role a special master can play in litigation, we really haven’t seen the full effect of this new role. But as time passes and special masters being utilized more and more in significant cases, we start to see their effect in this new role, in this new area.

David Goldstone – Electronic discovery is an important new skill set for litigators, but it is not a profound change or paradigm shift in the practice of litigation. In light of the rapid growth of information storage capacities, there will be a lot more electronic data to review and produce as time goes on. Sophisticated use of electronic recovery is absolutely necessary to keep litigation costs in line.

Chris Paskach – Marshall McLuhan made the assertion that, “In the shift to a new medium, the content reflects the previous medium.” For example, the first 10 years of television were essentially visual radio. We can see this phenomenon in the litigation document management industry as well:

• Before 1990, litigation was pretty much paper-based and lacked context from one document to the next;
• During the decade of the ‘90s, e-Paper, such as TIFF or PDF, emerged, as it had many of the same properties as regular paper with the added benefit of being on-line and full text searchable;
• After the year 2000, document analytic technologies have emerged in which semantically similar documents now cluster around themselves, without traditional e-Paper conversion, providing the reviewer a highly visual, intuitive interface for making document decisions.

As a result of document analytics, one can foresee law firms beginning the discovery process with an initial first-pass, native file review where massive amounts of non-responsive data can quickly be pared leaving only the responsive documents available for further processing. This can result in quicker settlement negotiations — knowing what specific documents pose a risk to the case up front; lower discovery costs; and increase review efficiency and thoroughness.

Derek Schueren – From a software perspective, there is a lot of good news regarding what’s possible now versus a few years ago. Techniques for managing and processing text have vastly improved, enabling applications to take into account document structure, and even context in processing information. This should only help in the efficiency and accuracy of the discovery process. That said, we see e-discovery as simply an extension of what used to be pure paper-based discovery. Although lawyers may learn new approaches to interpreting information processed using e-discovery, the essential role of lawyers and judges will remain the same.

Joe Kashi – Rule 34 and the rules about evidence spoliation are pretty good guides to what to do and what not to do. I believe that the same concepts apply to any record production and are fundamentally sound in both instances, as witness the guidance in FRCP 34 and the evidence commentaries. What is needed are generalized technical guidelines promulgated by the courts, perhaps included as part of discovery rules, that lay out a technical framework for what to do and what not to do when it comes to the preservation, disclosure and on-site discovery of electronic evidence. Doing electronic discovery should be relatively cook-book rather than arcane.

Skip Walter – Increasingly, the informal communications of the past are becoming formal “documents” subject to discovery. Recently, I sat through a demo of Microsoft OneNote and was caught off guard that here was a product currently distributed with Microsoft Office that had the ability to very unobtrusively record (audio and video) from a laptop while the user was making notes from the presentation and discussion. The notes indexed right into the multi-media stream. Now that laptops are an unobtrusive part of every meeting, how many people are recording this information, indexing it, and distributing it without my knowledge? With automatic tools like StreamSage, any meeting or presentation can be captured and posted on a company intranet or the Web within minutes. This is just one example of the many new types of discoverable digital information that are in use today.

Rick Davey – As EDD continues to mature, new problems will arise due in part to new technology (example: the revised ABA standards on electronic discovery), thus leading to a gap where EDD rules and practices have not caught up. Then tools, procedures and rules will be adjusted. The issues and solutions in and to EDD will continue to balance themselves, just as we have transitioned from total paper to paper plus digital. Education of lawyers will continue to bring digital discovery to every lawyer, just as a number of years ago, newer lawyers were being trained in word processing as their seniors were still using support staff and paper to generate, transmit and file their documents.

Chris Kruse – Electronic data will continue to create new and more complex challenges. We’ve only just begun to scratch the surface of instant messaging, for example. The long-term implication will be consolidation among electronic discovery vendors — only large, technically savvy vendors will be able to provide the expertise and sheer processing and storage capacity necessary to handle even a modest number of moderate size cases. The plethora of small electronic discovery vendors, many of them former scanning and coding vendors, will be overwhelmed with the complexity and capital requirements of creating an adequate service capability. As the complexity of handling the vast, growing number of potential electronic data sources soars, lawyers will need to develop closer relationships with their electronic discovery vendors as they increasingly come to rely upon their electronic discovery vendors for guidance in dealing with the avalanche of electronic data.

Lee Neubecker – All too often attorneys and judges request that the electronic evidence be produced in paper form. This is a major waste of trees, time and client resources. Before printing anything from electronic evidence, a few key tasks should be performed.

1. Generate the hash values or digital fingerprints for all files that exist on the electronic production set .
2. Compare the hash values of the production set against known software files such as those for Windows 2000 and MS Office.
3. Eliminate known files (these are files that were not generated by the user but by software companies).
4. Eliminate duplicate files by searching for matching hash values across files contained on the production set.
5. Cull the data by keywords and relevant time frames.

Following the steps described above often times can eliminate 75% - 95% of the data contained on a typical hard drive and ultimately, countless stacks of paper.

Chris Kruse – In the future, lawyers will also have access to new technologies — including concept search tools — that will significantly improve the speed and efficiency of the document review process. Today, the use of concept search technology in the discovery process is relatively immature, and courts of law have not yet validated that producing parties can consider such concept search tools as an acceptable alternative to physically reading documents when making decisions about relevancy and privilege. As concept search technology matures, it will become more consistent, transparent, and more broadly accepted by courts, and eventually lawyers won't need to read every potentially relevant document during reviews. Innovative new approaches will emerge that allow opposing parties to handle the discovery process in more efficient, interactive ways.

Sharon Nelson / John Simek – Certainly the electronic world is very different from the paper world. The digital format can contain information about draft versions, modifications, creator, creation and modification dates, deletion, stored location, etc. The paper copy may look identical, but the electronic version could have variations in the underlying information, which could be significant to the case. Education is key. The most important item is to preserve the evidence. Unlike paper, where you can shuffle it around and store it in a box, the electronic version can be tainted by just "looking around" to see what you have. If electronic discovery is at issue, DON'T TOUCH is the best advice. Spoliation of electronic evidence, some deliberate and some inadvertent, has become rampant.

Alex Lubarsky – Meta data is foreign to the paper world. It raises very interesting issues. Hearsay is really hard to decipher when the potential hearsay consist of information in meta data as opposed to the principal document. Think about it. Who is the "declarant" when an attorney wishes to enter into the record the "statement" that the WordPerfect document was edited by six people and revised twenty-three times? Is the declarant the author of the document? The computer? The EDD processing vendor? A combination of the three? Is there no declarant? How does work product privilege apply to meta data when it consists of information that is automatically generated and not intentionally created to further a litigator's strategy? If you are grappling with this, rest assured that you are not alone. So are the courts. This stuff makes the Rubik's cube look like a game of Chutes and Ladders.

Craig Ball – All of the above, except I don’t anticipate sea changes in dispute resolution or the role of lawyers. I do see a backlash that will either positively result in major changes to the sloppy way we manage data or negatively in protectionist rulemaking that shields electronic evidence from discovery. You see, e-discovery hands litigants a big stick by forcing opponents to bear the true cost of computerization. In the rush to automate, businesses largely abandoned sound records management in favor of commingling just about everything on massive networks and strewing the rest across local hard drives and digital devices. Plus, operating systems claim to delete data but don’t. Data is so hard to destroy and preserve that spoliation hangs like the sword of Damocles over the head of careless or arrogant opponents. The headaches of electronic discovery and the hardships arising from the duty to preserve digital evidence are just these chickens coming home to roost.

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