Electronic Discovery: Get a Grip Before It's Too Late

In a post titled "E-discovery--does anybody really know what it is?", Ernest Svenson explains with real-life examples why it is critical that lawyers begin educating themselves about the ins-and-outs of electronic discovery. Be sure to read the whole post. In the meantime, here are a few choice paragraphs:

In E-discovery the objective is the same as it is in regular old paper discovery: i.e., to find damaging information about your opponent as quickly and efficiently as possible, and then use it against them  At the same time, you want to identify damaging information about your client before the other side does.  This is basic stuff.  The trick is to accomplish this while sifting through digital data.  And that's where the sloppy thinking comes in.  Many lawyers will say, "oh, I know how to do electronic discovery.  I'll just ask the other side to produce their emails." And that kind of assumption often takes them right past a whole realm of potentially useful information.

That's because digital information doesn't just reside in E-Mails stored on corporate servers.  It also tends to exist in recipients' corporate servers, in backup tapes, in personal archives, and in laptops with access to POP3 email accounts.  And 'digital information' includes more than just E-Mails.  There are PDAs, voice-mail messages (some that get delivered in E-mails), instant messages, thumb-drives, and host of other places where useful digital data might be found.  So the first job is identifying the range of data that you are looking for. And, then (and this is the most important part), you have to prioritize your search to key-in on places that are mostly likely to contain the data you are looking for.

The days of mindless, paint-by-numbers discovery are over.  The world has changed, and systems that worked in the old world need to be re-evaluated. Electronic discovery is most dangerous for attorneys that are used to off-loading ministerial case-management tasks to paralegals and other non-attorney assistants.

How will you educate yourself about electronic discovery? If you're reading this, there's hope for you: it means you know how to use the Internet, where there's a vast amount of basic information available to you for free. If you're not feeling brave enough to find it yourself, you can begin with the many posts I've done about electronic discovery on this weblog, most of which are collected in the "discovery" category. Those posts will point you in still other directions--just follow the links.