e-Discovery: what you need to know

Ralph C. Losey is a shareholder in the Orlando office of Akerman & Senterfitt, P.A., where he heads the firm’s national electronic discovery practice group. He has practiced commercial and employment litigation since 1980, and has more than 70 published opinions. In addition, he is author of  e-Discovery: Current Trends and Cases.

YourABA recently asked Losey about those trends and, more broadly, what lawyers need to know about e-discovery.

First, so readers are all on the same page, can you explain what e-discovery is?

e-Discovery, short for “electronic-discovery,” pertains to the discovery of information in a litigation context that is stored in computers and other electronic devices. More and more, the smoking guns are not in the filing cabinets, they're in the computers.

e-Discovery has to do with locating, preserving, collecting, analyzing and producing these computer files. Computer files are now critical in litigation because that's how companies do business and how most people communicate these days, with e-mail and instant messages.

In order to prepare for a case, all of us as lawyers need to be computer literate and understand how to get at the evidence.

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Is there a trend in what lawyers can expect to be asked of them and their clients?

The trend is that courts are insisting upon a much higher degree of competence on the part of lawyers that appear before them, especially in federal court. Courts are becoming less tolerant about electronic evidence being “accidentally” destroyed.

Spoliation is now a common motion; it used to be rare but it is now quite common. Many lawsuits are now won or lost not on the merits, but on the charges and sanctions for not properly preserving computer files; for instance, not keeping e-mail and attachments to e-mail.

Are there recent examples?

One of the latest cases involves the mayor of Detroit, who may now be forced out of office because of romantic phone text messages he sent to one of his staffers. He and his staff member swore in deposition that they had no relationship, but later their text messages contradicted that. They obviously thought that the messages would never be found. That is a dangerous thing to do because electronic information like that has a way of lingering around for years, and can be found by smart investigators.

Today we need to realize that the “e” in e-mail stands for evidence. That’s what all the good lawyers are going for now, the opposing party’s e-mail. Even sophisticated executives in large corporations will still put things in e-mail that they would never put in a letter or other paper document under the naïve thought that, “oh, it's just e-mail. It won't last, it'll go away.”

Another trend is that we're not only seeing sanctions, but we're also seeing adverse inference jury instructions, where the jury is told that they should assume that the e-mails would have been harmful to the person who destroyed them. I have never seen one side lose if it is able to get those instructions.

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You’ve already mentioned the dangers of instant messages and e-mail, what other kinds of information can or should lawyers ask for from opposing counsel?

Contrary to the paper file in which there was no need to take a deposition about how things were filed, we're often seeing depositions being taken from the people who are in charge of filing the computer records. In some cases this also involves taking depositions of the opposing party’s computer techs. In addition, in every case you will want to talk to your client's IT department and have them explain where and how they keep the information that may be relevant to this lawsuit. The IT people become a key part of discovery in 21st century litigation.

One of the big changes in practice is driven by the new Federal Rules of Civil Procedures governing e-discovery that went into effect on Dec. 1, 2006.

These new rules require parties and lawyers to talk about all e-discovery issues at the beginning of a case. Issues to be discussed include the procedures in place to make sure that e-mails and other electronic information aren't lost, the form in which electronic documents will be produced, and what areas of a client’s total IT system will, and will not, be searched for discoverable information—all of these IT-related discussions are supposed to happen at the beginning of a case so that everyone has a chance to prepare. And even though these are federal rules, it's good advice to also have these discussions early in state court cases too.

You’ve already talked about lawyers now deposing IT personnel. It would seem to be important for a lawyer to work with their own IT people in order to fully understand the technology element. Care to comment?

There really needs to be a better understanding between the two fields of IT and law. They’re both very technical fields, with technical language used by both IT people and lawyers.

Lawyers need to take the time to ask the questions and make sure they understand exactly what their IT people are saying because the lawyer may be required to explain things to opposing counsel or to a judge. There have been countless examples where lawyers haven't fully understood what their IT people have said and, unknowingly, have made misrepresentations, or promises to complete a search and production in unrealistically short time frames. These costly mistakes can be avoided by obtaining a better understanding of the technical processes involved.

But remember, for law and IT to work well together, the educational process should be a two-way street. Lawyers need to take the time to teach key legal basics to their IT people as well.

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Are there any new developments that people should be aware of in this area?

As I mentioned earlier, courts are demanding more and more from lawyers. For example, two of my recent blog essays deal with key-word searching. In one case (Diabetes Centers of America, Inc. v. Healthpia America, Inc.), an attorney was criticized for doing a poor job of key-word searching. In that instance, the e-mail search was delegated to an untrained associate attorney with no instruction or supervision. The young associate totally missed it, and that caused key evidence to be lost. In that case sanctions were not imposed, but mainly because the other side made mistakes as well, and it was an offsetting balance.

Anything else that you’d like to add that we haven't asked about, or other last tips or pointers?

The thing that I'm talking about most right now is the “e-Discovery team” concept, which is the name of my blog. The e-Discovery Team is a new kind of multi-disciplinary corporate task group. Everyone in this field has found that the biggest thing any large organization can do to keep their e-discovery expenses down—and these can otherwise be huge, expenses of a million dollars in a single month are not uncommon—is to create their own internal e-discovery teams.

Here the in-house lawyers work with their IT personnel, records management and other key management people to prepare and put into place systems to respond to e-discovery. They work on retention policies, document management, software systems and litigation hold and collection procedures. The goal is to become more self-reliant, and reduce the costs of e-discovery.

One final thought—today we call it e-discovery, but everyone seems to think that in five years—or certainly 10—the “e” will be dropped. That’s because by then all discovery will be electronic. We won’t even think much about paper discovery anymore. For our kids the paper chase will be a quaint reminder of bygone days in the 20th century.

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