eDiscovery – Should I care ?
eDiscovery – Should I Care?
By Judge Arthur M. Monty Ahalt (Ret.)* and Judge Steven I Platt (Ret.)*
The Information Age has finally arrived with all of its magnificent efficiencies and productivity changing ways. People and businesses conduct many of their necessary activities with some interface with technology – probably more that you think. If a computer, be it laptop or desktop, is in the house or office many of the activities are in some way recorded on a hard drive. If the computer is connected to a network or the Internet things become more complicated. Like it or not the world we live in has changed. No longer are we a paper based society. All of our activities revolve around a computer and its hard drive.
But we still think and act in terms of our paper world. And our paper world is a replication of the physical world we see feel and touch hundreds of times a day. So we are accustomed to organizing our information by sight. We have books on book shelves, book shelves in libraries, documents in files, files in file cabinets and on and on. Yet inch by inch, almost imperceptibly, our physical world is being replaced by a digital world. Ask yourself what you are now doing on a computer that 10 years ago you did with paper?
So when you think of a law suit you have to train yourself to think in terms of the computer not paper. This will require most of us to go back to school. Fortunately, the basics are not that complex. The forensics are very complex, but learning enough to know what the right questions to ask is not complex. It does however; require some effort and sufficient curiosity and motivation to learn about a subject you might have instinctively not cared about earlier in your career. You used to have to think like a detective in the paper world. Now you have to think like a detective in the digital world.The key is discovering what consists of electronic stored information or ESI.
The Dispute Resolution World, whose most visible and conspicuous inhabitants are lawyers, judges, and other neutrals, is not an exception to the general rule. All of us need to adapt. That means we need to explore the digital world to the extent necessary to operate efficiently, economically, and ethically in a world that is not completely familiar to us. There is no going back.
Lawyers representing clients including government agencies and contractors need to understand the professional and ethical obligations which not only they, but their clients, have to retain, maintain, disclose and produce when required, electronic information and documents. Furthermore, counsel needs to know that these obligations can arise even before litigation is formally filed. Counsel also have a continuing professional duty which can include monitoring their clients compliance with the standard for doing so. These standards are continually being developed by the courts through rules and by case law.
The federal and state judiciaries are addressing these issues both by promulgating Rules of Procedure and through both Appellate court and Trial Court opinions. The Trial Courts are coping and at times proactively engaging in preventative law measures by requiring early pre-trial case management conferences which specifically address e-discovery protocols and by the appointment of Special Masters when these problems are not prevented. It is important that counsel, the court and perhaps most importantly the Special Maters appointed by the Courts to wade through the complexities of the e-discovery processes, protocols and perhaps even some of the forensics actually know the latest rulings in the field of e-discovery, but also the everyday realities of the practice of law. That means they know for example that the law requires “reasonable efforts” not perfection and that some errors are almost inevitable due to the volume and complexity of the stored electronic information. The Special Master should also know that the increasing number of motions for sanctions are not all meritorious and that many of these filings needlessly drive up the cost and time of litigation. The Special Master should also recognize and be familiar with the term “Claw-back Agreement”, Privilege and other concepts spanning the modern practice of law in the digital world and era.
If you are a lawyer who represents clients in court you will be making a very big mistake if you do not read Craig Ball’s collection of articles setting forth the duties and obligations of counsel. Your professional life could depend on it. See www.craigball.com. Not only is Craig one of the foremost authorities on the subject of eDiscovery, he is a world class persuader who has the gift of being able to communicate highly technical material in a simple, plain yet persuasive way. We would compare him to the immortal Professor Irving Younger. Yet Craig is just a regular guy and good friend who loves lawyers, judges and his fellow man. The ABA maintains a list of EDD resources on the web at http://www.abanet.org/tech/ltrc/fyidocs/ediscovery.html
This article as well as other related articles can be found on
* Judge Ahalt is currently recalled as a Circuit Court Judge and serves private parties as a mediator and arbitrator in personal injury, commercial, real estate, construction and electronic deiscovery disputes. www.montyahalt.com
* Judge Platt is currently recalled as a Circuit Court Judge and serves private parties as a mediator and arbitrator in personal injury, commercial, real estate ,construction and electronic discovery disputes. http://theplattgroup.com/