Discovery in a New World

Published September 27, 2011

Paper vs Electronic Documents

Since 2006 the Federal Rules of Civil Procedure require producing not just paper but all electronic documents and data for trial. Defendants and their counsel must carry out this duty to preserve and provide electronically stored information (ESI), or face penalties from the court. Producing ESI files in discovery obviously can be time-consuming and expensive, which inevitably is the opening for cost-saving from computer technology.

E-Discovery Software

Electronic discovery (e-discovery) software can analyze documents required for litigation discovery in a fraction of the time for a fraction of the cost when compared to using lawyers for the task. Some programs not only find documents with relevant terms at high speed, they can extract relevant concepts and deduce patterns that would have eluded lawyers examining paper copies.

Capabilities of ESI

ESI can encompass a huge number of documents. One gigabyte of ESI can equal up to 75,000 hard copy pages, and the largest lawsuits may require production of up to one terabyte (1,000 gigabytes) of material, or 500 million pages of paper – approximately equal to the height of 58 Empire State Buildings. This information must be produced quickly in discovery, and counsel must agree on the format, accessibility, location and types of information, production formats and matters of privilege.

Litigation Discovery and ESI

This new world of litigation discovery creates new responsibilities on the client side, once which their lawyers should ensure they are aware of. The fact is that any organization that potentially could be taken to court – businesses, professional associations, non-profits and more – has an ESI file preservation obligation. For this reason alone, each organization should have a records management and retention policy that addresses what exists, and develops best practices and procedures for storing and accessing it. Lawyers familiar with what is required in discovery can use their professional guidance to help clients with this task.

Searchable PDF Files

For law firms, document searching software programs are obviously a major solution, but they do not have to be the only one. Lawyers can maintain more direct control of the process by scanning client documents as searchable PDF files in the client’s records retention and management program. Having all key documents scanned is a simpler way to save substantial amounts in discovery costs. And if a client or firm is never sued, scanning documents in keeping with a retention policy creates a searchable, cost-effective file database.

Categorized in: Ethics, Management, Technology

Audience type: Large Law Firms, Small Law Firms, Sole Practitioners