Seven Deadly Sins of Electronic Discovery

By Daryl Teshima

Avoid these traps or you may find yourself in discovery purgatory in your next case. Lawyers for years have taken a “don’t ask, don’t tell” attitude toward electronic discovery. But as Enron and Microsoft have demonstrated, smoking guns today are digital. Ignoring electronic media discovery may result in overlooking some of the most compelling evidence in cases.

On the surface, electronic data discovery doesn’t seem too problematic for most 21st century lawyers. Courts have long since established that traditional, paper-based discovery rules govern the production of electronic media. And in this age of electronic filings and wireless Internet, most attorneys are well versed in sifting through emails and stores of electronic documents. What could go wrong?

Plenty.

With the push of a button, uncontrolled electronic discovery can generate a tidal wave of documents that can quickly overwhelm litigation budgets. But if handled properly, electronic data representing millions of pages can be searched with 100 percent accuracy in seconds. Better yet, the cost of processing electronic documents is often a fraction of the cost for paper.

There are a variety of technologies and techniques that can help you achieve digital discovery heaven. Unfortunately, attorneys on the road to salvation are often tempted by the following seven sins of electronic discovery. Avoiding them is the key to controlling and mastering electronic discovery costs.

Sin #1: Print First, Pay Later
 

The first instinct for most attorneys is simply to print out all electronic data received. It’s certainly understandable, considering the often-bewildering array of electronic data uncovered during the course of litigation. Compared to deciphering the bits and bytes on contained on CD-ROMs, DLTs, ZIPs, and other alphabet-soup storage devices, paper seems like a comfortable and efficient alternative. Unfortunately printing electronic documents often has the opposite effect, and essentially eliminates the one chance attorneys have of controlling digital discovery.

Electronic data has three distinct advantages over paper. First, electronic files and email can be searched with almost 100 percent accuracy. Second, electronic data contains “metadata,” which are hidden file characteristics (such as file creation date, who was bcc’d on an email, and the name of the folder where the document was stored) that can help give context to the particular electronic file. Third, electronic discovery is much more portable than paper, which means that millions of documents can be stored on CD-ROMs, your firm’s network or even on a data repository that can be securely accessed over the Internet. There are a number of programs and service bureaus that can help you maximize these electronic advantages characteristics. (See Sin #5 below for a short list of programs and services that work with electronic discovery.)

All of these benefits are lost when electronic files are printed on paper. The only way to search a box of paper is a manual page-by-page review, or to scan and utilize an optical character recognition program (which interprets the scanned words into searchable and editable text). But this process costs money and yields unreliable results, especially when searching for proper names and legal terms. And scanning will not capture the metadata surrounding the electronic file, which is lost when the file is printed. Paper sets also take up valuable office space, which exponentially multiplies with every copy set made (e.g., pristine set, working copies for reviewer, co-counsel, client and experts, produced set for opposing counsel, etc.). This seemingly innocuous copy process can become a significant expense of litigation, as an informal photocopying study at one large law firm revealed that discovery documents were photocopied an average of twelve times during the course of a litigation.

Paper still has some advantages, as most prefer looking at paper rather than a digital image projected on a computer screen. Indeed, if the electronic collection is small enough, paper can be a viable option. But as the next sin demonstrates, size matters.

Sin #2: Honey, I Shrunk the Discovery!
 

Perhaps the most difficult aspect of digital discovery is handling the increased volume generated by electronic data. Most attorneys are surprised to find that CD-ROMs of data that easily fit in their briefcase often expand to millions of pages when paper is added. Within seconds, your modest case (and budget) now contains an amount of documents found more commonly in large litigations. Suddenly, traditional paper-based methods for review and handling become unwieldy.

How big a problem has this become? One study found that in 1996, only five percent of the discoverable documents originated from electronic source material. Today, over 90 percent of all corporate communications is now electronic, and less than 30 percent is ever printed (and thus collectible in paper form).

This dramatic shift towards electronic data has resulted in an explosion in volume. With data storage capacities doubling every nine months, it has been become increasingly easy to store every email and document one comes across. Unlike paper (and its attendant physical storage limitations), that same study found that the average number of boxes collected per person has jumped from four boxes in 1998, to over 20 boxes in 2003 – an astonishing increase of over 500 percent in just five years. And with the electronic data preservation requirements imposed by courts and legislation like Sarbanes-Oxley, this problem appears to be growing at breakneck speed.

To determine how the extent of the volume for your particular case, you need to accurately translate the amount of data collected into pages, which will give the attorneys, clients, and courts a measuring unit that they can readily understand. The first step is to identify a small, but representative sample of the electronic data you will need to process and review, and then inventory the data. During this inventory process, be sure to eliminate files (such as Windows system and applications, multimedia files and other non-user generated data) that aren’t responsive or relevant to the case. By the end, you should not only have the number of MBs and files/emails to process, but also a breakdown by file types. This is important because certain file types (spreadsheets, presentations) tend to generate many more pages than others.

The second step is to select a small, representative sample and process it in accordance with the chosen method, which should contain specific instructions on how to print certain files. For example, the number of pages generated by a spreadsheet can vary widely depending on the print settings such as “Unhide Rows/Columns”, “Expand Cell to Fit”, and the selected print area of the document. Whatever the method chosen, the method should be consistent in order to get accurate MBs to page ratios.