What every lawyer should know about e-discovery

By Correy E. Stephenson
The Daily Record Newswire

RICHMOND, VA - Electronic discovery strikes fear in the hearts of many attorneys. Unfamiliar with the terminology and hesitant about technology in general, lawyers have struggled with the tidal wave of electronically stored information, or ESI, hitting the courtroom.

"The biggest mistake lawyers make is thinking there are lawsuits that don't involve electronic discovery," said Richmond practitioner Monica McCarroll. "Every case today involves electronic evidence and for lawyers to not recognize that is a huge mistake."

ESI can appear in any situation, ranging from a small business dispute (a customer list at a mom-and-pop operation) to a family law matter (a spouse's questionable texts) to a PI case (where a plaintiff alleging serious injury just posted some waterskiing pics on Facebook).

Courts are losing patience with lawyers who can't keep pace with e-discovery in litigation, issuing sanctions for spoliation. And regulatory bodies are beginning to consider whether ESI errors may also run afoul of ethical requirements.

But don't throw in the towel just yet, e-discovery practitioners advised.

"Don't panic and get paralyzed," advised Jonathan Redgrave of Chantilly, adding that all attorneys don't need to be experts. With a baseline understanding about a client's data, a proactive approach to handling ESI in litigation and the willingness to seek help when necessary, lawyers can survive an increasingly electronic world.

"Lawyers do need to know what they don't know," he added, and call for backup when a complicated issue arises, either from a technical consultant or an attorney with e-discovery expertise.

What do I need to know?

The first step: getting lawyers to have a working competency with technology, said Charlottesville attorney Dean Lhospital. He recently led a CLE on digital forensics and was prepared to begin his presentation discussing various types of media and files. But as he started speaking, he was forced to backtrack to a more basic level with a conversation about how computers store and index information.

Despite a historic resistance to change - and technology - Lhospital said he has noticed a shift, with more practitioners trying to understand at least the basics. "When lawyers are asked, 'What do you wish you knew more about?' most of them are going to say technology," he said.

Applying technical knowledge to a case can be trickier. When an attorney realizes a matter involves ESI, begin by taking the time to learn about a client's data. Lawyers "need to understand where the information is and how [the client] uses it," Redgrave explained.

"Ask questions like 'Are the clients emailing?' 'Where do they store their data?'" McCarroll suggested. By gathering the answers, a lawyer will understand the scope of the data involved in the case and where it is located, which will help guide the process of collection later on.

Also important early on: dive right in by addressing ESI with the court and opposing counsel. "Put a discovery plan in place at the start of the case," McCarroll stressed. "It will save time, money and frustration throughout the engagement." During this time, lawyers should advise the client on the range of options available for preservation, collection and production, keeping in mind the value of the case as well as the amount of data involved. "You can't save everything," Redgrave said.

A plan can also help avoid a "scorched Earth" mentality. An attorney who blindly starts collecting ESI without narrowing the focus could end up with an overwhelming amount of evidence, greatly increasing costs. Or neglecting to advise a client to place a litigation hold could result in the inadvertent destruction of ESI, leading to gaps in production and potential court sanctions for spoliation.

For example, identify the relevant custodians (not every employee will have necessary data) and establish limits on time periods or source (a home computer may not have ESI relevant to an employment dispute). Planning ahead can also avoid pitfalls down the road with regard to format. Without an understanding in place, lawyers could receive discovery results in a format they are unable to search or need specialized software to search.

Lhospital noted that ESI should be included in an attorney's standard discovery requests as well, such as an interrogatory asking the opposing party to save their Facebook profile.

For purposes of collection, consider seeking assistance, McCarroll said. "Whether the law firm has in-house personnel, or a third party vendor, or the client's IT department, the collection of electronic evidence can require a unique skill set," she said. Don't ask the client to forward all of his e-mails or print all the documents off a USB drive and consider the job done.

The data-gathering phase also is complicated by the "Bring Your Own Device" model developing in many businesses. Company policy may be that the company owns devices it provides, but employees often are plugged into multiple personal devices for both work and play.

"You have a duty to preserve even if data isn't under your control," said Nicole Donnelly, a consultant with FTI Computer Forensics Group. Donnelly and colleague Casey Hiser talked about new frontiers of data collection with a Women in e-Discovery group in Richmond on Aug. 12.

With the trend toward BYOD, people doing discovery are running into more kinds of encryption. Lawyers are looking to tools like Cellebrite, which specializes in extraction, decoding, analysis and reporting of data stored on mobile devices, for expanded access.

E-discovery is different from traditional discovery because of the lack of clear standards for collection, Hiser said. "How do you review a Twitter feed? How about a Google video?" How do you know how to present the results of that review to a court?

Hiser offered some "best practices" to lawyers and their staffs: Include social media, identified by specific type of data and device, in your preservation letters to clients. Advise them to save all information as quickly as possible and not to post about any ongoing lawsuits. Take multiple screenshots of critical content showing various metadata and account names.

The ethics of technical proficiency

For those lawyers who need some healthy fear of consequences to speed up their learning curve, remember that lawyers are held as responsible as clients for e-discovery errors, Redgrave noted. "You can't shrug your shoulders by signing discovery responses and requests, the court will hold you to a level of accountability," he said.

E-discovery knowledge - or the lack thereof - could also play out in the ethics realm.

Two years ago, the American Bar Association updated the Model Rules of Professional Responsibility to recognize that lawyers need to keep pace with relevant technology as a component of their duty of competency. State bars have followed suit, with California recently issuing a proposed opinion addressing an attorney's ethical duties in the handling of discovery of electronically stored information.

The California opinion gave lawyers three options when faced with a lack of e-discovery expertise: acquire "sufficient learning and skill before performance is required"; associate with or consult more knowledgeable attorneys or tech experts; or decline the client representation.

"The takeaway I had from the opinion is similar to the premise of the ABA Rules and our governing rules in Virginia, which is that attorneys have an obligation to either educate themselves or associate with someone who is educated," McCarroll said, similar to other areas of law, like patent or employment.

"The trend is that lawyers are now expected to be up to date on technology as part of being up to date in the law," Lhospital agreed.

Published: Tue, Aug 19, 2014