Part I
Examining e-Discovery and ESI Essentials
In this part . . .
This part presents e-discovery in digestible chunks so you understand the essentials of e-discovery at its simplest level. We explain e-discovery laws that have re-written the responsibilities of legal and information technology (IT) professions in Chapter 1. Legal and IT ā two groups most unlikely to speak a common language or operate at the same tempo ā are most responsible for e-discovery success. Also in Chapter 1, you learn that all electronic content that we create, send, post, search, download, or store has a legal name: electronically stored information, or ESI. We cover why this ESI universe is subject to discovery and cite cases where failing to preserve and produce ESI cost litigants serious amounts of money and essentially gutted their cases.
In Chapter 2, you learn why working with ESI is messy even under the best circumstances. Youāre introduced to the relationship between the age of ESI and the ability to reach out and retrieve it from its storage media. ESI can be online, offline, gone, or somewhere in between. The ability to reach and retrieve ESI determines its accessibility, which in turn influences its discovery status from the perspective of judges (or the bench). You find out why itās best to resolve your ESI disputes with the opposing side rather than turn those disputes over to the bench. Also in Chapter 2, we foreshadow the fate of enterprises unprepared for e-discovery. You start to understand that investing in ESI retention and management tools to get into litigation-ready shape is much less risky than whining about why itās too burdensome to respond to an ESI request. Chapter 3 continues these lessons.
Prelitigation best practices get you into a strong defensive position, as you read in Chapter 3. You learn one of the most crucial lessons ā that most cases are settled as a result of e-discovery because itās only then that both sides learn the strengths and weaknesses of the otherās case. You donāt go all in with no chance of winning, at least not more than once. When you do e-discovery right, you have a powerful offensive or defensive weapon.
āWe used to say thereās e-discovery as if it was a subset of all discovery. But now thereās no other discovery.ā
āJudge Shira A. Scheindlin (2009), e-discovery rock-star judge
Chapter 1
Knowing Why e-Discovery Is a Burning Issue
In This Chapter
Diving into e-discovery
Seeing electronic information in 3D
Getting the layout of the litigation process
Understanding the steps in the e-discovery process
Beginning in 1938, Federal Rules of Civil Procedure (FRCP) have governed the discovery of evidence in lawsuits and other civil cases. Discovery is the investigative phase of a legal case when opponents size up what evidence is, or might be, available. During discovery, the parties in a dispute ā the plaintiff (party bringing suit) and the defendant (the party being sued) ā have the right to request any information in any format relevant to the case from their opponent. Each party has to respond with either the information or a really good reason why the information cannot be presented.
Despite several updates, FRCP remained largely limited to paper until 2006. Evidence, on the other hand, had gone electronic and onto hard drives of computers and handheld devices. To synchronize the legal system to the realities of the digital age when almost everything is e-mailed or viewed on an Internet-enabled device, electronic discovery (e-discovery) amendments to the FRCP were enacted on December 1, 2006. Put simply, changes to the FRCP mean that almost all discovery now involves e-discovery.
In this chapter, you discover how e-discovery rules rocked the legal landscape by making electrically stored information (ESI) discoverable. You read why you must start thinking about e-discovery long before youāre involved in a legal action. Electronic discovery is an inescapable obligation (like paying taxes); you must be able to produce all relevant ESI on demand. To produce data and documents, you have to save them in such a way that you can find, open, and read them. You and your lawyers can expect consequences when stuff goes missing. Armed with this information, you then get familiar with the basic stages in the e-discovery process.
Getting Thrust into the Biggest Change in the Litigation
In April 2006, the United States Supreme Court approved sweeping changes to the Federal Rules of Civil Procedure (FRCP). After getting Congressās approval, the amended FRCP became law on December 1, 2006. These amended rules are aimed at one issue ā the discovery of electronically stored information (ESI). ESI used as evidence is electronic evidence, or e-evidence. Despite their differences, the terms ESI and e-evidence are often used interchangeably.
As you can guess from the title, the discovery of anything electronic is called e-discovery. With most or all decisive evidence being electronic, you need to understand both the legal and technological dimensions of e-discovery ā and depending on your job, you may just be competent in one or the other. We talk about the legal side in Chapter 4, which details the new FRCP. Many U.S. state laws are based on federal laws so thereās no escaping e-discovery rules. For a description of the federal rulemaking process, visit uscourts.gov/rules/newrules3.html.
You can download a copy of the 166-page FRCP describing its 86 rules from the U.S. Courtsā Web site at www.uscourts.gov/rules/CV2008.pdf. If youāre new to the rules, you might hold off reading them until youāve read Chapter 4 in this book. Why did e-discovery rules, in effect, steamroll the litigation landscape? The short answer is that lawyers and litigants were unprepared to comply with this type and volume of discovery and all its complexities. Two reasons account for most of this lack of preparedness.
Lawyers are not IT people. The huge majority of lawyers never had a course in IT (information technology) or e-discovery in their law schools. Electronic evidence lives in many places and forms that are tough to find, collect, store, and interpret without technical skills.
Electronic discovery must be addressed when a lawsuit is filed. When litigation initiates, so does the e-discovery clock. Comparing Figure 1-1 to Figure 1-2, you see how the discovery phase of litigation has changed. Prior to December 2006, discovery was an afterthought. Most litigation doesnāt go to trial, so cases ended before discovery got started. Not anymore.
No matter the size of your case, you need to make sure your lawyer has a clear understanding of the technologies involved and knowledge of the e-discovery rules to meet and manage his e-discovery duties correctly. If your lawyer lacks the tech expertise and the experience to make e-discovery more efficient, you risk e-discovery going wrong...
