Searching for data relevant to business litigation cases used to involve a team of lawyers spending long hours sifting through boxes of documents around a conference room table.
Within the past three years, that process has been changing.
These days you’re more likely to find attorneys clicking mice in front of computers reviewing volumes of electronic documents – a task that has become even more laborious, more time-consuming, and more costly than the old ways.
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More than 70 percent of documents created in the workplace today are electronic in nature, said Stephen Prignano, a partner at Edwards Angell Palmer & Dodge’s Providence office and co-chair of the national, 500-lawyer firm’s e-discovery team.
“The vast majority don’t ever get printed out,” he said. “That’s what generates the complexities. That’s what generates the requests.”
Edwards Angell created an e-discovery team about a year ago to deal specifically with requests for electronic data, said Prignano. The team is composed of about 20 IT professionals, paralegals and attorneys.
“I don’t know if there are lawyers doing nothing but this work,” he said. “I do know in my case it’s taking up more of my time. … It’s still a very small but growing practice area.”
Patricia Sullivan, partner at the firm’s Providence office, said federal courts are currently amending their rules of procedure to include e-discovery issues, such as how electronic documents are disclosed, how they are kept and who absorbs the costs.
Superior Court Judge Allen Rubine, who is scheduled to participate in an e-discovery workshop with Prignano, Sullivan and other lawyers this Thursday at the R.I. Bar Association’s annual meeting at the R.I. Convention Center, said the state courts’ rules of procedure don’t specifically address electronic discovery yet.
Rubine said he’s handled two or three cases involving e-discovery requests. Most courts are still “going through the growing pains” of realizing “not everything is on paper anymore,” he said.
Sullivan said interest in e-discovery practices “really exploded” with a series of legal decisions in southern New York in 2003 and 2004 that involved requests for electronic data from large corporations.
Though requests for electronic documents “started in an innocuous way,” Prignano said, “many requests were getting botched. … Responses were incomplete and mishandled.”
When that happens, the consequences for a company can be devastating, he said. In Zubulake v. USB Warburg, for example, USB, a Swiss investment bank, lost the case involving an employee suing under gender discrimination laws partially because the bank’s methods for producing electronic documents were deemed incomplete and inaccurate by the court.
The case cost USB more than $20 million, Sullivan said, not including court fees, attorney fees or third-party e-discovery vendor fees.
In order to prevent that from happening, e-discovery attorneys advise corporate clients to implement hold techniques as soon as litigation concerns arise, she said. A hold technique is “a process that ensures that hard drives are not reused, e-mails are not deleted.”
Prignano said forming an e-discovery response team is another way to avoid e-discovery complications in litigation cases. He advises companies to determine who will be in charge of coordinating an e-discovery request should one arise. It would include members of in-house legal counsel and the IT department. They would need to determine where to find the information, which could be on desktops, laptops, cell phones and home computers in addition to hard drives and backup tapes. They would also need to determine how to retrieve and organize electronic data.
“It’s critical for large and small companies to have document retention policies,” he said. “[Document retention policies] put limits on the amount of data in a system.”
The policies ensure e-mails and other electronic documents are routinely purged after a certain period of time, he said. Document retention policies can protect the company from being penalized in court.
Even if companies do have efficient IT and legal counsel working on streamlining the data in electronic systems, they still sometimes must hire a third-party e-discovery vendor because of the sheer volume of data that must be reviewed.
Ibis Consulting, a Providence e-discovery company started in 1992, employs 20 production specialists who monitor the electronic data being processed by software that looks for whatever evidence is needed for a legal case or regulation, said Tony Riccio, the president.
Riccio said Ibis handles about 1,200 e-discovery projects per year, a 50 percent increase from 2004. It has participated in e-discovery for large, national cases such as the Enron prosecutions.
The company employs 17 software developers who design software specifically for e-discovery projects, he said. They are constantly adapting the software platforms to new data and new situations.
Attorneys and corporations also use e-discovery vendors to salvage meta data, which is sometimes lost when documents are converted from one format to another, Riccio said. Meta data is data about the data and can include the author of a document and the date it was created and modified.
Prignano said e-discovery vendor services can costs hundreds of thousands of dollars, depending on the case and the amount of electronic data requested. Sometimes the cost falls on the client, sometimes on the attorney.
“The reality is that litigation is changing to include electronic discovery,” he said. “Lawyers are going to have to be familiar with this area, learn how to respond to these challenges.”
“Ten years from now there probably will be no such thing as an [e-discovery] expert,” Sullivan said. “Everyone will understand the issue. It will become part of common knowledge and practice.”
