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Why Are Lawyers Still Afraid of E-Discovery?


By: Stanley Louissaint

We often fear what we do not understand, and lawyers are not exempt from this theory. E-discovery is still one of those items often dreaded by law firms … and sometimes for good reason. There is a dark cloud of mystery around e-discovery and at times it is hard to see through it. Some questions that often arise include: How is e-discovery supposed to be used? What are the real benefits? Why can’t we go around it?

When e-discovery first appeared, it was perceived as a mysterious thing that computer/technical people created. Actually, that is only partially true. As soon as the ability to store electronic data became available, e-discovery began to play an integral role in legal matters. In my daily work, I often find that the mystery surrounding e-discovery is still prevalent in many of today’s law firms.

One of the larger hurdles surrounding e-discovery is those parties who have the job of educating others about it and its various uses. More often than not, individuals who are technical in nature are in charge of spearheading this initiative. Frequently, these individuals have a hard time properly conveying their message to the attorneys. Before we even begin any e-discovery-related tasks, the first thing I do is educate those who are working on the matter about what we are doing and why. This allows for all parties to fully understand what the mission is and how e-discovery will impact the current case. The education of all who will be involved is an integral part of the process; without it, difficulties arise while working through the e-discovery process.

Please note: You cannot survive in today’s litigation climate without the use of e-discovery. I mean, you can try but you will not be successful. We are constantly creating data in this new data-intensive world and reinforcing the need for e-discovery. There are emails, text messages, Web pages, word processing documents, paperless offices, digital client files and the list goes on. Standard sized file cabinets have turned into hard drives/USB flash drives and other types of storage devices. Digital data cannot be avoided, and it’s here to stay. The creation and use of electronic media impacts each and every one of us, whether we want it to or not.

Resources are another major challenge that firms face today, for they often lack the adequate manpower needed to get through the newfound burdens that e-discovery can place. This issue always appears during the review stage. The ability to dedicate different teams of people who are available to constantly review the influx of data that continues to come in is a resource that most firms do not have. A way to combat this problem is to first properly draft your e-discovery demand. This can be challenging, as attorneys like to cast a wide net during this process to avoid missing some vital piece of information. The wider the net, the more data you will receive from your adversary. With more data comes more time to process, cull and review that data. Also, widening your request can create this negative effect of exponentially increasing your data collection or putting an undue burden on the other parties involved.

However, properly drafting your discovery demand means asking the right question for your request. Some of the questions you will answer are: What are the search terms? Who are the custodians? What’s the date range that needs to be searched? Are these searches to be performed on the entire network? Or just portions of it, such as just the email server or file server? Certain businesses have proprietary software that runs their business; do you know if this exists? If so, how will you read this data once it’s received by your team? Is the data hosted on-site, in the cloud or is it a hybrid solution? There are many questions that need to be answered before you can properly move forward.

To help alleviate this burden, a firm can partner with a vendor who specializes in this area instead of attempting to handle it in-house. Being able to call on a resource on an as-needed basis proves valuable on many levels, but the cost savings factor is a major one. There are many issues that arise, and inexperience is a sure way to increase the costs surrounding e-discovery.
What file format will be provided by or to adversaries? It is mutually beneficial for both parties to agree on which file format the discovery will be produced in during the discovery demand phase. This is an area where a lot of resources will get spent if this phase is not done properly. Files can be provided in native form, single-page TIFFs, multi-page TIFFs, single-page PDFs, multi-page PDFs or searchable formats. Native form is searchable, and anything that is not searchable can be run through the optical character recognition (OCR) process. It can get costly if time has to be spent converting and matching up files that were not produced properly. Of course, there are exceptions to the rule where you cannot help but to get certain things in their native form because of special file types; but having an agreement between both sides before production begins allows there to be a predictable outcome when the data is imported for review.

You have now received the data requested from your adversary. Your next step is preprocessing the data to make sure it is what you’ve asked for. Is this from the requested custodians? Does the date range match what you asked for? Are there duplicates? With this step you can further cull out unnecessary data for the review process and prepare it for import into your review platform. The review platform is where you will perform document coding, sorting, tagging, searches and the final review of the data in question.

During the review step, you will look for the data that will support your position. As important as it is, this too is where many attorneys get bogged down. Because of the potential for massive amounts of data collections, it becomes an intensive and laborious process to sift through the data to find what you’re looking for. I’ve been part of review processes that have contained millions of documents that felt as if you were looking for a needle in a haystack. But this is the job that attorneys are hired by their clients to do—find that needle. Having the proper e-discovery review tool and the people who know how to use it gets you through this monumental task. You have to ask yourself, what is the alternative? In reality, the alternative is printing every sheet of paper out and reading it line by line. This, by far, does not sound either efficient or cost-effective.

The old way of dealing with discovery is gone. E-discovery has arrived and it is here to stay. Instead of attempting to avoid it, you have to embrace e-discovery entirely. Over time the way in which we currently use it will undoubtedly change. Tools will improve, and counsel will ultimately accept this method as part of the new standard operating protocol. Partnering up with the proper vendor to help facilitate these needs will spare you the costly mistakes that can happen when entering this unfamiliar territory. E-discovery is another tool in the toolbox which lawyers can use to zealously assert their clients’ position while simultaneously elevating their skill set.

Reprinted with permission from the June 22, 2015 issue of the New Jersey Law Journal. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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