What is free yet could be worth $20 million? What is discussed within the confines of one's home yet broadcast to the world? What is loved by most middle school students yet loathed by most senior citizens? Instant messaging (“IM”), blogs, VoIP, MySpace, YouTube: the list goes on and on. As corporate America and technology have evolved, so has the law. First letters, then email, then IM: the content remains the same, but the medium continuously evolves, as does the law.
Most, if not all, of you have heard about the recent amendments to the Federal Rules of Civil Procedure (the “Rules”). Effective December 1, 2006, the Rules not only began officially to address electronically stored information (“ESI”), but the Rules also began an unprecedented clash between law and technology.
As a young attorney, you may not have many chances to argue a case in federal court, or many chances to take the deposition of an IT witness in a large federal case, or many chances to meet and confer with opposing counsel to discuss whether the parties will produce documents in native or TIFF format. However, as a member of generation Y, you will be asked to tell a senior partner how IM works. You will be asked to explain how cell phones are used to text message as well as verbally communicate with another user. When clients raise questions regarding the use of emerging technologies, you will serve as the repository of knowledge regarding the latest and greatest advancement in communication tools.
Wondering how knowledge about the storage capabilities of your Blackberry® Pearl™ will transfer to success as a young lawyer? The following list details the top ten ways in which you can use your knowledge about emerging technologies and become an integral part of an e-discovery litigation team:
10. Your litigation team thinks they can collect the client's relevant ESI as fast as someone can post a blog entry, right? Think again! You understand that the e-discovery process, by nature, cannot be fast. However, you know that technical knowledge can make the process more efficient. If counsel understands where data resides within a client's system, counsel can immediately seek and preserve relevant information residing in that location.
9. You understand the e-discovery process is not often fair due to inequalities among the computer use of Americans. When your firm's Fortune 500 client faces a former employee in court, you envision “The Return of Zubulake .” You understand that your client may face unprecedented costs preserving and producing ESI while the individual plaintiff may produce only a binder of hard copy emails.
8. You comprehend that producing and performing a privilege review of five years' worth of email records along with two years' worth of IM records will cost a small fortune. You also know that it could take months to understand a large company's IT infrastructure. However, such an understanding pays serious dividends as the e-discovery process runs its course.
7. In order to cut litigation costs, your client asks that only one attorney meet and confer with opposing counsel. Your response? Due to the overbearing nature of ESI in this case, you strongly recommend against such a tactic. You know that a technologist will create a sense of credibility for your client and help ensure ESI preservation and production requests are reasonable and feasible.
6. When asked if disclosures can be limited, you are understandably concerned. You know that a technologically advanced client may have a seemingly endless list of ESI disclosures.
5. Your supervising partner has known the local judge for years, and he assures you that the judge will be sympathetic to your case. However, you are skeptical because you know that many judges (and many Americans in general) have a very limited knowledge of ESI and computers. If a judge does not understand computer use basics, you know that judge does not understand the magnitude of reviewing one terabyte of ESI for privilege (think 58 Empire State Buildings of paper).
4. When asked to produce specific records, your client forwards you 38 emails, each containing 7 Word attachments. The client asks that you print the documents and deliver them to the opposition. Using your firmest tone, you insist “No metadata!” First, forwarding the attachments alters the metadata. Then, printing and producing hard copies of the attachments fails to give the requesting party access to relevant metadata fields.
3. The requesting party will forget about ESI, right? Wrong! When faced with an employment discrimination suit, for example, plaintiffs are convinced the “smoking gun” is likely to lie within IM communication among managers in charge of the company's hiring and firing.
2. You know that preservation and collection efforts cannot be placed in the hands of the few. The attorneys and the IT department cannot expect accurately and efficiently to identify all relevant ESI alone. Field-level employees, upper management, IT personnel, in-house counsel, outside counsel, and records managers should collaborate to ensure ESI is properly preserved and collected.
1. When asked to identify and preserve all relevant ESI, you know that preservation efforts cannot be limited to email, Word documents, and Excel files. Protect the client and the attorney team from spoliation sanctions by ensuring that potentially relevant IM is recorded and retained, .wav files containing voicemail are preserved, and key players' iPods are seized.
Remember that both technology and the law will continue to evolve. Soon, a court will be faced with potentially rendering sanctions for the spoliation of IM evidence. Strive to be the member of your litigation team who understands the court's explanation of how the company failed to use the record retention features of an enterprise IM system. A detailed understanding of emerging technologies will increase opportunities for success in e-discovery litigation.
