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.