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Electronic Discovery: As an Attorney, Are You Prepared For It? |
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You’re sitting in your office when your secretary buzzes
you and says you have a letter in from the mail. Upon opening
it you realize it’s a request for electronic discovery.
The opposing attorney is asking for your client’s hard
drives, emails, phone records, tape backups, and other legacy
media.
Do you know how to respond to their request? Do you know
what is relevant or not to the litigation? How do you review
and do productions on electronic discovery? What kind of software
exists out there to help? And can’t you just give them
paper and let them be happy with that?
So many questions, and not surprisingly, so many answers.
To begin, you need to know what electronic discovery is before
undertaking any kind of response. Electronic discovery is
the term coined to indicate any information in electronic
format that is passed between two parties for the sake of
discovery during or before litigation commences. Such information
can be electronic files on a hard drive, emails on a pda,
server, laptop, or desktop, and voice and video recordings
among other things.
Generally, most electronic discovery is centered on anything
that could be paper, but is usually electronic. Emails, word
documents, and excel spreadsheets seem to be the most highly
sought after items in discovery. Whereas an attorney could
get away in the past with printing out an email and handing
it over the other side, these days that is generally not good
enough. Email files contain what is called meta data which
shows who sent the email, what time, who was cc’d and
who was even bcc’d. It may even show what email servers
sent the data out originally.
Because emails are kept in electronic format during the ordinary
course of business, it seems only right to ask for it in the
same format. There are many vendors out there that can assist
with processing emails and electronic files for the sake of
discovery and productions. Doing a price comparison won’t
always give you the best solution for a service provider.
Ask around. See who is doing a good job among other firms
and who isn’t. Vendors will take the electronic data,
process it by taking out the metadata and create what is called
a tiff image and a corresponding data record linked to that
image that you can search on. These vendors will even OCR
the image so that you can search on the words actually on
the image.
Computer forensic experts also exist and would be happy to
provide consultation to the attorney who needs help in deciding
how to handle this new realm of discovery. Such consultants
are usually well versed in discovery requests and can assist
in making your own discovery request as well.
Once you have received the electronic data from the opposing
attorneys, you now need to review it. The same vendors who
assisted you with your own processing can now process the
opposing attorneys files as well. They will either process
and give you back searchable data files for various popular
litigation support software (Concordance, Summation, etc)
or some vendors have hosted solutions available that are web
based and allow you to do online reviews for relevancy, confidential,
and other hot coding issues that you would normally do in
your own office with paper.
Now that I’ve given a little primer on what electronic
discovery is, don’t be alarmed if you are not up to date
on everything. There is more than enough information on the
web that will allow you to sink your teeth in and absorb this
ever growing field of electronic discovery. A good source
of reading about this field is http://www.electronicdiscoverycenter.com
About the Author:
Article written and provided by Article Authors
for Electronic Discovery Center.
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