E-Discovery Update: E-Discovery New Year's Resolutions for 2007By Conrad J. Jacoby, Published on January 15, 2007
With the start of 2007, gyms across the country are full of people trying to work off the weight from too many holiday parties and cookies, and many people are trying to live up to ambitious self-improvement goals they announced to family and friends on December 31. Judges and attorneys, too, have returned from holiday breaks with renewed energy and hopes of better managing their case loads and improving their efficiency.
In this time of fresh starts, it's worth looking at e-discovery and the way that it will impact the practice of law in 2007. The amended Federal Rules of Civil Procedure have also been in effect for over a month, and multiple groups and factors are speeding the movement of these requirements to state courts as well. In keeping with the spirit of turning over new leaves, I'd like to suggest three additional New Year's resolutions for attorneys that will help them be more effective advocates and practitioners in the coming year.
I. Read the Rules
The legal trade press is saturated with articles describing the significance of the amended Federal Rules of Civil Procedure. Attorneys are attending continuing legal education programs on this topic in record numbers as they seek greater knowledge and comfort with what some commentators have described as a fundamental paradigm shift. However, with the oceans of commentary and secondary knowledge available to legal practitioners, a surprisingly large number of lawyers haven't sat down to read the actual amended Rules themselves. This exercise takes a very modest amount of time, and it will pay extremely large dividends.
The plain language of amended Rules 16, 26, 37, and 45 is refreshingly brief. Stripped of commentary and without a bulky redline to highlight language changes, both of which take up some 80+ pages in the most commonly distributed version of the amended Rules, the "new" Rules are only a few pages long and take only a few minutes to read. Moreover, they contain plain language that describes the expectations-and schedules-placed on counsel in both litigation and civil subpoena matters. This plain language is a succinct and powerful way for counsel to gauge the impact that the amended Rules will have on their existing matters and own e-discovery best they have used to this point. It's also a highly effective way for attorneys to educate their clients of the necessity of better and more proactive e-discovery strategies and procedures.
Read the Rules. Take the time to draw your own conclusions. You'll have a renewed understanding of client obligations and strategic objectives-and the legal arguments required to support them.
II. Learn the Vocabulary
Members of the legal community have dedicated significant time and effort into mastering the specialized and sometimes obscure vocabulary of the law. Indeed, after working in the law for some time, it's easy to forget how foreign and incomprehensible terms like "fact discovery" and "motion in limine" can be to non-attorneys. The increased importance of technology terms used to describe repositories of potentially relevant digital information is a sharp reminder that lawyers, too, can be locked out of an entire subject matter area because of language difficulties.
Practitioners would be well-served to increase their understanding and comfort with e discovery terms. After all, while e-discovery is presently a mandatory meet and confer topic only in federal matters, attorneys will need to raise and discuss this issue with their clients-and their clients' I.T. professionals-in all cases. Judges and clients alike will not be patient with counsel that lacks the ability to request the right information or correctly describe the measures taken in response to discovery requests.
Learning the essential vocabulary of e-discovery can be a fairly straightforward exercise; few attorneys will need the deep expertise of a certified network engineer. One obvious source of e-discovery education is the Report of the Civil Rules Advisory Committee and its official commentary to the amended Federal Rules of Civil Procedure. These analyses are a Rosetta stone that translates "geek" to "law" by discussing technology terms in terms of their legal significance and by offering specific examples of how some current technology should be analyzed under the Rules. The Committee's discussion regarding "accessible" and "inaccessible" electronically stored information, for example, will be a key topic of discussion, negotiation, and motion practice in the coming years, even as underlying technology changes over time.
A second source of e-discovery vocabulary education is a well-written dictionary or glossary. Several such documents exist, often as appendices to e-discovery treatises. One high-profile resource is The Sedona Glossary, published by the Sedona Conference Working Group on Electronic Document Retention and Production. Available for free and updated on a regular basis, the Sedona Glossary has been endorsed by many commentators and has even been embraced by a number of e-discover vendors that formerly compiled their own proprietary dictionaries. It's certainly not necessary for an attorney to understand every single term referenced by the Sedona Glossary, but it's vital that he or she understand the subject matter well enough to effectively use this resource to gain deeper specific understanding as required.
III. Do No Harm
One of the biggest fears in working with electronically stored information is that some action will alter, delete, or otherwise damage the digital information. At best, inadvertent spoliation is embarrassing; at worst, it can be devastating to your client's legal position.
Avoiding irreparable problems requires thinking on multiple levels. On the logistical front, timely and properly executed data preservation should be a key objective in every situation. "Properly executed" does not mean that clients should be barred from purging obsolete digital information from their archives. It does, however, mean that preservation strategies should err on the side of over inclusion, not under inclusion. Data preservation is not the same as data collection, much less data processing or production. Legal teams will have ample opportunity to negotiate-or litigate-fine points in these stages of the e discovery process. However, without proper preservation, even the best collection, processing, and production cannot erase the blemish of inadequate preservation measures.
"Do no harm" also applies to the legal front. Attorneys should never make representations about the status of e-discovery preservation, collection, or production without double-checking their facts. Ideally, attorneys will report, not originate, status reports created by subject matter experts (be they in-house or outside specialists). Attorneys should never make absolute statements like, "We have collected all possibly relevant documents" when it is more correct to say, "Based on our current understanding and the current factual issues at issue, we believe that we have harvested all potentially relevant documents.
"Doing no harm" also requires attorneys to understand the e-discovery issues in the case and the expertise required to address them. It is not essential for everyone to become scholars in the detailed and sometimes obscure field of electronic evidence. However, attorneys should understand e-discovery issues sufficiently well that they can develop a legal team that is capable of addressing and resolving each of these issues. Legal teams that lack sufficient expertise do a greater disservice to their clients by fumbling through the e-discovery process than by recommending that the client retain an e-discovery expert to assist in developing that part of the case.
New Year's Resolutions usually fade into quiet obscurity after a few months. Health clubs find that most new members drop out after only a few weeks of effort. Hopefully, though, these three modest e-discovery resolutions will survive longer than that, helping both attorneys and their clients work through the e-discovery landscape in the coming year.