eClaris' newly released software as a service (SaaS) eDiscovery platform was unveiled by Jacques Nack Ngue, CISA, Founder and President of eClaris, in a recent interview with Lawyers USA.  Nack Ngue focused on how the platform enables attorneys on a case to process, review and produce data found in discovery for opposing counsel on time and on budget.  Security is based on SSL technology and data stored on the SaaS application can only be accessed through a personalized PIN number that only the attorney will possess.  To read more about Nack Ngue's conversation with Lawyers USA -- entitled "eDiscovery in the clouds" -- visit http://www.dolanmedia.com/view.cfm?recID=547625

For most attorneys, embarking into the world of electronic discovery (e-discovery) and confronting the costs associated with it represent the single biggest challenge—and headache—in conducting litigation or alternative dispute resolution. The recent proliferation of federal and state laws dealing with electronically stored information (ESI) has exacerbated these hurdles. Against this backdrop of growing legislation and case law, counsel engaged in arbitration are tasked with making sense of how ESI will be approached and harnessed to its most effective use and presentation in an alternative dispute resolution setting without imposing all the courtroom expectations and sensibilities inherent in the traditional litigation setting.

Common Hurdles

For the past decade, ESI has surfaced as the foremost and most popular medium for data communication and storage. Although ESI is perhaps most recognizably represented by electronic mail messages, it may be found in a myriad of other formats and comprises enormous amounts of digital data. Some experts estimate that as many as 161 billion gigabytes of digital data were created solely in the year 2007.[1] A paper document containing an equivalent amount of information would stretch over 92 million miles!

To make matters even more complex, the sheer size of ESI is not the sole issue that must be confronted. After all, digital data can just as easily be duplicated and moved across an array of network systems with a few simple commands. As a result, it has become increasingly complicated to pinpoint the sources and locations of particular pieces of ESI. Indeed, the ESI sleuth will need to navigate through complicated servers, email systems, detachable media, voicemail, and even iPhones, to name a few. Each of these resources may contain information that is pertinent to legal discovery.

In contemplating and integrating ESI into an admissible form with a proper evidentiary foundation, counsel begin to confront an additional series of hurdles—namely, increased expenses and added risk. The combination of these two, and the fear of the unknown that they engender for the uninitiated, has led numerous cases to mistakenly settle prematurely. The arbitration attorney must therefore ensure that expense and risk are eliminated or minimized in tackling these evidentiary legal issues outside the courtroom setting.

Whither Arbitration?

At its inception, arbitration was articulated as a relatively relaxed alternative to complex litigation. The concept was thus born of the idea of giving both sides a straightforward, swift, and cost-effective arena to sort out their differences. Although the myriad rules of evidence generally did not apply, the arbitrator was granted authority to demand production of data, both electronic and not. Parties, however, did not believe that the arbitrator’s mandate was robust enough to accomplish complete discovery. This understanding has transformed arbitration into an expensive and lengthy expedition in which each side is left with the often unsatisfactory results of, at best, a partial discovery process.

Nonetheless, arbitration may be favored by parties because, if nothing else, it is still viewed as being less costly than traditional litigation. This perception is based on the greater latitude granted by state and federal courts for expansive and expensive discovery requests in response to motions to compel discovery. In litigation, this outcome is particularly discouraging when strict deadlines must be confronted and enormous amounts of ESI must be accounted for as part of the discovery process. Thus, arbitration, as flawed as it may be, is preferable from a cost-savings perspective because it allows for additional limitations as to the scope of ESI that will be admitted into evidence.

There are other benefits as well. Arbitration offers a secure, proven forum for airing and managing controversial pre-hearing dilemmas. In addition, the traditional rules of evidence do not fully govern in an arbitrational setting, and the perceived procedural shackles of litigation are therefore less restrictive in arbitration. These advantages dovetail quite well when supervising large-scale and specific ESI requisites in an arbitrational setting.

When Worlds Collide

Many have been baffled as to how e-discovery should be conducted in practical terms once ESI becomes pertinent to an arbitration. This is perhaps due to the enormous amount of possibly discoverable ESI and the expenses associated with producing it to the other side. In these and other arbitrational settings, the arbitrator should take the lead by setting up a case management conference to be attended by both parties. The conference should be of substance in terms of time and content and be attended, preferably, by the parties in person. In addition, it is recommended that the parties’ information technology representatives be present as well to review, explain, and query the ESI in question.

During the case management conference, the arbitrator should mandate a litigation hold on all pieces of relevant ESI. If the parties have previously agreed to a litigation hold, the terms of the litigation hold should be scrutinized at the case management conference for all permutations of ESI along with any pertinent retention or deletion timetables to ensure that no ESI is manipulated. In addition to a methodical march through the many ESI options that may exist, including third-party and legacy systems, it is recommended that the parties review at this time the production formats and search terms to be employed thereafter.In intricate cases, arbitrators have become accustomed to ordering sampling as a form of search term verification. Sampling can be imposed by an arbitrator when the parties may be dealing with an enormous number of ESI search terms. In doing so, the arbitrator crafts less invasive and more limited ESI searches to evaluate the helpfulness of repeating the partial sample searches more extensively. While this method may not yield consistent results, it is a practical substitute to sanctioning an indiscriminate search, which would be likely to increase the time and costs associated with interrogating the ESI.

Conclusion

E-discovery and arbitration need not be incompatible. Indeed, the fact that arbitration is the forum for resolving the parties' dispute can play a vital role in determining a party's ESI interests in a manner that is both swift and equitable. Consequently, arbitrators must be familiar with the workings of ESI to better manage the e-discovery likely to appear in their next case, so that the perceived advantages of arbitration are not lost in the process of handling ESI in the arbitrational setting.

Really?  I’ve spoken with many attorneys even in today’s tech savvy environment and this response is still common when I ask them if the cases they litigate involve eDiscovery.  In fact, over 95% of all cases involve some form of electronically stored information or ESI.  Even if an attorney says they only deal in paper, the content that is printed out on that paper, in all likelihood, was generated on a computer somewhere.   From the smallest of cases to the largest, “We all do eDiscovery.”  The question should not be, “Is eDiscovery relevant in my case,” but “How can I better manage my case by using eDiscovery.”

Is the existence of ESI a burden or a blessing?  Many litigants who say they don’t do eDiscovery often are the litigants who position themselves nearest the door during a CLE presentation on eDiscovery, or they avoid talking about the subject all together.  The main reason given is that, “I don’t want to engage in eDiscovery because it’s too expense and complicated.  I’d rather stay with paper.”  They believe that it is a burden to handle discovery information in an electronic format.  This belief system actually creates more of a burden than avoids one.  When ESI is reduced to paper form a number of things happen: 1) the document becomes static and unsearchable except to the human eye; 2) paper often becomes lost during the course of litigation and new copies have to be printed; 3) paper is difficult to organize into separate categories without multiple copies being made; 4) the ability to electronically search aspects of the document are not available such as author, sent date, subject line, etc.

On the contrary, when ESI is maintained in an electronic format a number of advantages arise: 1) the documents can be maintained in a database for easy access; 2) the document never gets lost since it is electronically stored and is regularly backed up; 3) the content of the document can be searched electronically and even thousands of records can be searched simultaneously in a fraction of the time it would take to search an equal amount of paper; 4) document characteristics can be searched such as author, date created, date sent, subject line, etc.  The actual cost of handling litigation, no matter what the size of information involved in discovery, is actually less expensive in today’s world and much more efficient if one “Does eDiscovery.”

I served as a litigation support manager and analyst in two AMLAW 100 firms as well as litigation technology consultant to other law firms spanning 15 years and nowhere did I see a situation where handling a case “electronically” or “digitally” was more costly or more burdensome.  On the contrary, the opposite was true and still is.  Prior to the new Rules of Civil Procedure concerning ESI, the specter of electronically stored information and how do deal with it long scared litigants to “minimize” the scope of discovery.  “I won’t ask for your Pandora’s box if you won’t ask for mine.”  In such cases, I was told personally by the litigants that they are only going to ask for paper as if they could freely pick and choose what evidence to build a case with.  Not only did this mindset do injustice to their own clients’ interests, it also put them at a disadvantage.

With the adoption of the new FRCP concerning electronically stored information, the luxury of picking and choosing evidence is going away as well it should.  Advances in technology have lessened the risk of opening that Pandora’s Box and actually enhanced the discovery process itself.  Information can be processed exponentially faster than ever before and searched with greater clarity.  As the volume of information that is drawn into the discovery net increases, the tools to fish have become more sophisticated and efficient and arguments that eDiscovery requests are over burdensome are getting less and less traction in the courts.

It’s actually a good time to admit that you “Do eDiscovery” and to seek the expertise of those who have walked in your shoes before.  An eDiscovery expert can 1) give early direction to limit the scope of how much ESI is needed to collect through the Meet and Confer process; 2) provide best practices to cull the collected data down; 3) provide tools for early analysis of the data; 4) design searches to identify key records, or group-tag potentially relevant or privileged records; 5) design review criteria to increase review rates and reduce time in review; and 6) help plan the production of evidence.  The result will be greater control over the evidence and more efficient handling of your case.

In conclusion, eDiscovery should be embraced rather than avoided.  While many litigants in large firms understand the benefits of eDiscovery and who are aware of the changes to the FRCP as well as state versions of the same, there is a large pool of attorneys in these large as well as mid-size and smaller firms who do not.  This article invites you to explore the option of your first question in discovery being, “Where is the ESI?” rather than it being your last question.

*Jeff Steve, Esq. is based on Los Angeles, California where he works for eClaris, Inc., an e-discovery and computer forensic consultancy and service provider dedicated to helping law firms and corporations classify process and review electronically stored data.  He can be reached at 213.270.1465, jsteve@eclaris.com or through www.eclaris.com.