Data discovery has played a key role in US litigation for two generations, during which time nearly all forms of information have migrated to the digital realm. Yet, according to Texas-based trial lawyer and e-discovery expert, Craig Ball, few legal departments are addressing this reality. He says that, despite the central role of electronic information in our lives, e-discovery efforts are either overlooked altogether or pursued in such epic proportions that discovery dethrones the merits as the focal point of the case.
Ball believes that, at each extreme, lawyers must bear some responsibility for the failure. ‘Few have devoted sufficient effort to understanding their clients’ information architecture or mastering tools and techniques to manage data,’ he argues. ‘We didn’t know how good we had it when discovery meant only paper. Paper is tangible. It has to be stored somewhere physically accessible, and systems have developed over time to store and retrieve it. Paper holds power of place, whereas electronic data accumulates invisibly.
‘Even if employees label electronic data accurately, they rarely file it consistently,’ continues Ball. ‘Thousands of emails sit ignored in inboxes; their subject lines offering no clue as to their contents. Documents are saved in cryptically named folders on desktops and portable storage media or replicated between work and home computers. There is still plenty of paper around, too, but filing systems, like filing clerks, have all but disappeared.’
Ball adds that there is a standard misconception that evidence can be retrieved simply by running a Googlelike search across a company’s electronic files. ‘That’s rarely feasible, even in high-tech enterprises,’ he emphasises. Similarly, he is frustrated by the attempts by many lawyers to try to convert e-data into paper form. ‘Such is the volume of electronic information that it would be impossible to convert it all to hard copy,’ he says, ‘and yet lawyers seem to overwhelmingly favour this expensive, inferior path over learning to deal with electronic data differently.’
Electronic evidence isn’t going away. It’s growing… exponentially, and some electronic-evidence items, such as databases, spreadsheets, voicemail and video, bear increasingly less resemblance to paper documents. ‘Lawyers need to discuss ways to preserve these kinds of electronic evidence, select formats in which to produce it, and manage the huge volumes of information that they produce,’ says Ball. ‘Similarly, litigators need to learn to get on top of e-disclosure requirements or find a new line of work.’
How deep should you dig?
Most discussion about e-discovery in the US today centres around changes to the rules of practice and procedure. Most of these rule changes support the notion that accessible data must be preserved, processed and produced at the producing party’s cost, while inaccessible data should be available for good cause, possibly with costs being shifted to the party seeking the data.
But what makes data ‘inaccessible’? For example, is inaccessibility a function of the form the information takes, the media on which it’s stored or the effort and cost required to make sense of the data? ‘Accessibility analysis is not a helpful touchstone, especially in a fast-moving field such as computing,’ remarks Ball.
Ball says that some companies are reacting to the challenge of electronic data management better than others, but he argues that it’s not just a question of purchasing a software package or tool. ‘You have to make decisions as a company about how you will manage data and then enforce those decisions across the organisation,’ he comments. ‘There isn’t a quick solution for this, but it is a lot more manageable than many lawyers appreciate.’
Automatic archival systems, better records’ retention and more accessible forms of storage than back-up disks will help. But Ball emphasises that it doesn’t all need to be tackled in one go: ‘If companies begin simply by better managing their email, they’ll reap great benefits.’ he says.
This is particularly important when it comes to separating legal advice from generic correspondence.‘ Segregating privileged material is one of the most costly elements of e-discovery preparation work,’ Ball explains, ‘yet manual review for privilege is no guarantee against inadvertent disclosure. It concerns me that companies continue to pay for this information to be separated after the fact, rather than implementing procedures to demark sensitive, privileged material at the time it’s created.’
Most lawyers now understand the role of e-discovery and have become more artful in requesting it. But Ball believes that what they need to do next is learn to collect, filter and search electronic information with the same attention that they used to bring to paper records. ‘That would minimise the need for companies to pay others to process electronic data for them and, more importantly, eliminate much of the delay between when a client needs advice and when the lawyer is equipped to offer it,’ he adds.
Ball says that adapting to e-discovery is not as difficult as many lawyers believe: ‘Companies already employ people who understand how systems work and the role they play in corporate communications and decision-making. As soon as lawyers take the time to acquire the skills to communicate effectively with these subject matter experts, reasonable and robust solutions will begin to emerge.’
Time to move on
Companies that are slow to adapt their discovery practices are paying dearly for their intransigence, either through sanctions for obstructive conduct or through the high cost of rectifying errors. But Ball says that some are beginning to recognise the value of candour and cooperation in e-discovery.
‘This is where progress lies,’ he concludes. ‘The cost and complexity of e-discovery will diminish only as electronic records management improves and lawyers acquire new and essential e-discovery skills. But first adversaries need to wake to the fact that cooperation and candour in e-disclosure is not a sign of weakness but one of professionalism and good sense.’
To find out more about preparing yourself for e-discovery, click here.
For further insights into data management, click here.
This article was first published in Legal Strategy Review, issue 6