By now, practically everyone even remotely involved in litigation in the United States knows that discovery of electronic information, E-Discovery, has become a very big deal, especially in light of related amendments to the Federal Rules of Civil Procedure enacted more than a year ago.
Now is a good time to step back and review how companies are grappling with the costs and burdens of E-Discovery. A recent analysis of trends by Clearwell Systems, Inc. makes clear that companies are seeking to take increasing control of E-Discovery procedures and are working with outside law firms to reduce the expense, risk and difficulty of E-Discovery.
For example, companies have begun to understand that E-Discovery does not constitute a one-off event, but instead must be incorporated as a formal business process. As a result, companies and their law firms are forming E-Discovery teams for proactive management.
Companies are also making efforts at the earliest stages of litigation to choose the best technology and implementation tools for E-Discovery analysis. In this way, they can isolate truly relevant and important information from vast volumes of electronic data.
Moreover, parties in cases are striving to reach agreement on keyword searches of electronic data. By reaching agreement, parties are much less likely to incur the wrath of a judge who otherwise might take the position that search efforts have not been satisfactory.
In addition, companies are starting to bring E-Discovery processes in-house to streamline processes and to reduce costs. While outside providers still handle certain tasks, such as large scale reviews, internal teams have taken on specific routine tasks.
Great efforts also are being made to cull out irrelevant information from case data sets on the front-end of litigation. This reduces in-house and outside counsel workloads significantly over the life of a case.
While companies and counsel are becoming more familiar with E-Discovery and related processes, this means that the standard of care is rising. Thus, there have been instances in which parties have been sanctioned for failing their E-Discovery obligations when such conduct might have been overlooked previously.
Importantly, the scope of E-Discovery is expanding across different technologies. E-Discovery does not simply encompass emails. It also can include blogs, instant messages, voicemails, VOIP, etc. This makes proactive E-Discovery management all the more critical.
As time goes on, companies generate increasing volumes of data as part of their business functions. Again, this militates strongly in favor of ongoing, up-front E-Discovery management.
Furthermore, it is imperative that confidential and privileged information be culled out of electronic productions. Thus, searching processes that automatically seek to weed out such information are being employed.
Finally, given the tremendous expense of E-Discovery, vendors have been coming out of the woodwork to offer companies technological solutions. Companies need to work with their outside counsel to form the best partnerships in the E-Discovery arena.
In a relatively short period of time, E-Discovery has become an engrained part of litigation in the United States. This represents a trend that will continue on into the future.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His website is http://www.sinrodlaw.com and he can be reached at [email protected]. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.
This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.