Angela Shapiro on Electronic Discovery
By Steve Thorpe
Digital, as opposed to printed, information plays an increasingly important role in legal evidence. Electronic discovery, usually shortened to e-discovery, deals with electronic information needed for litigation or governmental investigations. Angela Emmerling Shapiro of Butzel Long has extensive experience in all aspects of commercial litigation with a strong focus on electronic discovery. She was named a 2014 “Top Lawyer” in the area of Information Management and E-Discovery and also sits on the board of directors for the Michigan Defense Trial Counsel (MDTC).
Thorpe: Give us a quick and painless definition of “e-discovery.”
Shapiro: Most information is stored electronically these days. “Files” are much more likely to be digital than paper. Sending associates into storage rooms to dig through boxes in order to answer discovery requests or find evidence is no longer the norm. Instead, parties are faced with the prospect of sorting through electronic data, often in quantities that would fill buildings if printed. E-discovery is the process of handling electronically stored information before and during litigation (or an investigation) in a way that balances the needs of the parties with cost considerations, all while guarding against claims of spoliation.
Thorpe: When did the courts and the rest of the profession realize that the e-discovery process needed more attention? What were the first steps taken?
Shapiro: The Federal Rules of Civil Procedure were amended in 2006 to specifically address electronically stored information. While parties and courts had been dealing with electronic evidence before then, the amendments truly put e-discovery on the map. That is when many attorneys first realized that electronically stored information had to be considered and competently addressed in nearly every case to avoid the possibility of serious sanctions like potential dismissal, adverse inference instructions, or monetary fines.
Thorpe: E-discovery is complex enough now that practitioners go through a certification process. Tell us about your certification experience.
Shapiro: E-discovery is an umbrella term that covers many stages: working with a client to develop meaningful document retention and litigation hold policies, overseeing highly technical preservation and collection efforts, negotiating production protocols with opposing counsel, understanding software available for reviewing electronic data, creating efficient review workflows, understanding developing e-discovery law, and so much more. There are various types of certifications available, some that focus on one step of the process and some, like the CEDS certification I recently earned, that document knowledge of the entire process from end to end. I elected to go through the CEDS certification.
Thorpe: It seems like e-discovery is nearly always a team effort. True?
Shapiro: Absolutely. Efficient and effective e-discovery projects require a team approach utilizing IT personnel (or others familiar with the client’s infrastructure), company leadership, and outside counsel. Communication and cooperation with opposing counsel throughout the process is also critical to completing e-discovery projects without nasty (and costly) surprises that could end up becoming a lawsuit within the lawsuit, drawing resources and focus from the true issues that should be occupying the litigants and the court.
Thorpe: One of the big issues in many e-discovery efforts is “proportionality,” as it applies to the cost equation. Tell us about that.
Shapiro: E-discovery can be very costly. Preservation alone can sometimes cost more than “traditional” paper discovery would have cost in days gone by. Reviewing mass quantities of data, even utilizing lower cost contract attorneys, is another serious expenditure. Litigants must adjust to this reality and realize that not every bit or byte that resides on either side’s hardware or network is necessary to the case. The Federal Rules of Civil Procedure were just amended again, effective this month, to address this reality and promote proportionality as a governing concept. In effect, proportionality requires balancing the importance of the issues being litigated and the context of the case (amount at issue, for example) against the costs for accomplishing different types of e-discovery and agreeing on a path that best achieves that balance.
Thorpe: How is e-discovery evolving? What do you see in the future?
Shapiro: Predictive coding software that helps to prioritize/rank terabytes worth of data in a way that allows for efficient and relatively quick review is one area that we will continue to see evolve over the next few years. We will also see much more early discussions between opposing counsel about e-discovery and proportionality (in part because the new amendments require it). I also expect to see more courts and parties involving e-discovery attorneys to serve as experts or mediators on e-discovery issues, helping both sides figure out what is truly necessary vs. what is theoretically possible when preserving, collecting, producing and utilizing electronically stored data.
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