Why Attorneys Need To Understand E-Discovery

Hedda Litwin, Cybercrime Counsel

Hedda Litwin, NAAG Cybercrime Counsel

All you have to do is take a look at the sheer volume of information that is generated and stored electronically to understand why it is impossible for any attorney to avoid e-discovery issues. One widely cited study estimates that 93 percent of all documents are created in electronic form, and less than one-third of those ever make it to printed form.1 In addition, we all know that electronic communication, whether it be e-mails or instant messaging, has taken the place of telephone conversations. One study has estimated that 31 billion e-mails are sent out each day.2 The sheer volume of data is staggering, with one gigabyte of data being able to hold about 1,000 novels or being roughly equivalent to 18 hours of MP3 play. In addition to computers, there is a wealth of portable devices out there – all containing data and all discoverable.

The above does not, of course, include data that is not visible and was not intentionally created – the most useful of which is metadata. Metadata is not intentionally created by the user but is created or amended by the computer. It contains all sorts of useful information, such as the date and time the document was created and amended, the identity of the person creating it and the edits made to it. Metadata can be very helpful for uncovering the history of documents and whether the documents have been subject to tampering.

This proliferation of information led to the recent amendments to the Federal Rules of Civil Procedure. The substance of the amendments has been adopted by, or is in the process of adoption by, several states, including Mississippi and New Jersey. The amendments address major areas regarding the retention and discovery of electronic information, such as the need to address electronic discovery issues during the first meeting of the parties; discovery of both accessible information and information that is not easily accessible; the assertion of privilege; and the limit of sanctions for electronically stored information that is inadvertently lost during normal computer operations. Failure to preserve electronically stored information, failure to make disclosure and failure to cooperate in discovery can result in severe penalties. So, if for no other reason, attorneys need to understand the amended rules to avoid sanctions.

The problem with getting up to speed on electronic discovery is that while there is no shortage of trainings and conferences on this issue, all of them target attorneys in private practice. Hence, NAAG is filling this gap by sponsoring “Best Practices in E-Discovery,” a conference developed under its NAGTRI training initiative and designed for civil, enforcement attorneys and prosecutors from Attorneys General offices, which will be held May 13-15. If you are handling cases involving discovery, this course is for you.

For more information about the course, please contact Hedda Litwin, NAAG Cybercrime Attorney, at hlitwin@naag.org or 202-326-6022.

1Richard E. Best, “Why Discover Electronic Data?” at http://californiadiscovery.findlaw.com/electronic_data_discovery.htm.

2Stephen D. Willinger and Robin M. Wilson, “Negotiating the Minefields of Electronic Discovery,” 10 Rich. J.L. & Tech. 52, 58 (2004).

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