The Risk Manager, Fall 2005
In following malpractice issues nation-wide we are seeing an increasing number of cases involving botched e-discovery responses with lawyers along with their clients being held responsible by courts for mistakes in managing the e-discovery process. Clients then blame their lawyer and make a malpractice claim. This is not an issue only for large litigation firms. With the rapid expansion of the ways that information is stored electronically by government, business, and private individuals, e-discovery requests can occur in virtually any litigation undertaken regardless of the nature or complexity of the case.
When responding to an e-discovery request lawyers must start by asking three questions:
Where are the e-documents? E-documents can be stored in desktop computers, laptop computers, hand-held computers, mainframe computers, network servers, floppies, CD-ROMs, DVDs, backup tapes, etc. They can all be in a central location or dispersed off-site in branch offices, employee homes, storage facilities, etc.
Are the e-documents accessible? E-documents used in current operations of the client are usually readily accessible, but older files may be damaged or readable only with obsolete software that is no longer supported by the supplier. Even if e-documents are accessible, can they be indexed or organized in a way that permits accurate computer identification of responsive documents? E-mail proliferates in such an ad hoc manner that it virtually defies indexing. Often meaningful review can be accomplished only by reading all e-mails in the system – a time consuming and expensive method.
How much of it is there? We all know that e-documents are proliferating exponentially. There are estimates that thirty-five billion e-mails will be sent a day in 2005. There can be one copy of an e-document or hundreds of copies in numerous locations. The point is that the potential for receiving a crushing e-discovery request grows everyday. Responding can become overwhelming for the most diligent client and lawyer.*
One authority offers this checklist for ensuring that relevant documents and data are preserved:
- Advise your clients to adopt and follow an electronic document retention policy.
- Retain an expert, if necessary, to map your client's computer network and determine where information is stored.
- Delete data pursuant to the policy; make sure the data is actually deleted.
- Develop policies to avoid saving unnecessary information.
- Be wary of the existence of metadata.
- Pay special attention to digitalized voicemails and e-mails.
- In the event of a lawsuit or claim, institute a means to preserve all relevant evidence.
- Anticipate discovery requests.
- Consider cost-shifting.
- If the court permits an adverse party to invade your client's computer, develop a protocol to protect confidential or privileged information, prevent damage and avoid interference with on-going operations.**
For an overview of e-discovery risk management read E-Discovery Risk Management Is the “New New Thing" in the September 2005 KBA Bench & Bar. An outstanding free research source for e-discovery is the newsletter Case Law Update and E-Discovery News on the Web site of Kroll Ontrack at www.krollontrack.com.
* Del O’Roark, E-Discovery Risk Management Is the “New New Thing,” KBA Bench & Bar, September 2005, Vol. 69, No. 5, page 24.
** Frank H. Glasser, Electronic Discovery: New Issues For Risk Management, manuscript article, ABA 2004 National Legal Malpractice Conference Materials at page 287 (4/28/2004).