Growing Amount of Digital Information Creates Need
For Electronic Evidence and Discovery Guidelines

Electronic discovery is changing the landscape of the law.  And, lawyers – from those representing major international corporations to those representing the hardware store in town – are finding they need to improve their understanding of electronic evidence and discovery.

Currently 93 to 96 percent of all information is created electronically, according to the authors of the ABA publishing best-seller, The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines.  Of that electronic information, less than three percent of it will ever be converted to print. 

The authors – Sharon D. Nelson, Esq., president of Sensei Enterprises, a computer forensics and legal technology firm in Fairfax, Va.; John Simek, vice president of Sensei Enterprises and an Encase-certified forensic technologist; and Bruce A. Olson, shareholder in the Milwaukee-based Davis & Kuelthau, S.C. – further estimate that each day 34 billion email messages are sent in the United States alone.  Worldwide on an annual basis, email sent amounts to the equivalent of one to two trillion books.

In business, the authors estimate that more than 80 percent of company communications are sent via email; however, only 35 percent of companies have an email retention policy.

The Electronic Evidence and Discover Handbook offers background, forms, checklists, guidelines and a glossary to help lawyers incorporate e-discovery into their cases. All 60-plus forms in the book are on a CD-ROM packaged with it.

Changes to the Federal Rules of Civil Procedure that went into effect in December 2006 have created more awareness of the critical nature of electronic discovery, according to the authors.

Two of the book’s three authors, Nelson and Simek, recently took part in a podcast discussing the impacts of electronic discovery on the practice of law. 

Now that the Federal Rules of Civil Procedure concerning electronic discovery are in place, Simek points to two significant changes concerning collecting evidence.  “First, everyone is asking for evidence to be in data files format,” he says.  “We also find lawyers are addressing electronic evidence early on just like the federal rules intended.”

He pointed out that lawyers are looking for guidance from the states on how individual jurisdictions are responding to the new rules.  “A lot of states are studying some form of modification” to accommodate electronic evidence, he says. 

According to Nelson, “Even if states don’t adopt them [Federal Rules of Civil Procedure], they are generally following them.  In fact they were following the rules before they were adopted.”

Nelson said that there is a lot going on in e-discovery that can seem overwhelming to smaller firms whose cases do not involve Fortune 100 companies.  The courts are aware that not all cases are Enron.  “Judges are aware of the justice of individual situations.  They are not going to expect a small retailer to have a document retention policy.  At the same time, judges will not be sympathetic to a large company saying that it can’t pull a set of tapes out of rotation because it would cost too much,” she said.

She recommended that law firms find a third-party expert that can help with electronic evidence and discovery.  “Smaller firms are better off with smaller companies where they can build a relationship,” she said.

Simek explained that these third-party firms acquire the evidence, extract data and perform analysis.  He suggested that the best way to identify a possible firm to work with is to ask colleagues for referrals.  He also suggested asking whether or not the firm has certifications in computer technology and in forensics, and the level of its professional experience.

Nelson said that electronic evidence and discovery is growing rapidly.  “Right now, there is no code of ethics.  We are all dealing with a segment of an industry in its infancy.”  She notes that this year the electronic discovery market is expected to top $1.9 billion and an estimated $3 billion next year.

While those numbers are enough to make people sit up and pay attention, Nelson believes that in time, electronic discovery will benefit from better certification and standards.

To listen to the podcast

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