A Call for Collaborative Action

A Call for Collaborative Action
“It is not necessary to change. Survival is not mandatory.”

– W. Edwards Deming
Requesting and producing discovery material in litigation has undergone a radical change – yet
most practitioners cling to the paper past. In the 1850’s when Abraham Lincoln practiced law he
managed his client’s information using paper folders. Today, most practitioners still adhere to this
way of practicing law, though now we see boxes upon boxes of paper documents. Times have
changed. Computer technology and the Internet have transformed litigation from a sea of paper
to a sea of electronic evidence. “According to a University of California study, 93% of all
information generated during 1999 was generated in digital form, on computers. Only 7% of
information originated in other media, such as paper.” In re Bristol-Myers Squibb Securities
Litigation, 205 F.R.D. 437, 440 n.2 (D.N.J. 2002).
The volume is expanding at a dizzying rate. In 2002 alone about 5 exabytes of new information
was created. “How big is five exabytes? If digitized with full formatting, the seventeen million
books in the Library of Congress contain about 136 terabytes of information; five exabytes of
information is equivalent in size to the information contained in 37,000 new libraries the size of
the Library of Congress book collections.” Peter Lyman & Hal R. Varian, How Much Information,
University of California at Berkeley, School of Information Management and Systems (Oct. 27,
2003) available at http://www.sims.berkeley.edu/how-much-info-2003.
Now, whether your clients are facing regulatory compliance, litigation holds or internal
investigations the steps of identifying, preserving, collecting, processing reviewing and disclosing
information is different. Understanding concepts such as “native file format,” “metadata” and
“residual data” and others will have to become part of your discovery protocol.
More importantly, this transition to handling the huge volume of electronic evidence requires
timely collaborative action. In two leading discovery cases, we see the failure of collaborative
action between in house counsel, outside counsel, IT personnel, witnesses, etc. resulting in
severe court imposed sanctions. In both the Zubulake and Morgan Stanley cases, the failure to
preserve and disclose electronic discovery resulted in an adverse and a burden of proof inference
instruction that resulted in a 29 million dollar employment case and a 1.4 billion dollar commercial
case verdicts. Was this lack of timely collaboration unusual? Maybe not, one survey has noted
that 75% of AmLaw 200 law firms were not qualified to handle complex EDD matters. EDDix, LLC
Survey, Sept. 2004. In fact, the courts have increased the risks to practitioners themselves by
suggesting that failure to preserve and disclose “finds expression not only in the rules of
discovery, but also in this Court’s Rules of Professional Conduct, which prohibit an attorney from
“suppress[ing] any evidence that the lawyer or client has a legal obligation to reveal or produce . .
. ” Danis v. USN Communications, Inc., 2000 WL 1694325 (N.D. Ill. Oct. 20, 2000). This coupled
with malpractice risks for not properly advising your clients re electronic evidence can lead to
devastating firm wide consequences.
No longer can counsel sit back after notifying their clients about a preservation mandate and
assume their clients are fulfilling their discovery obligations. Instead, as expressed in several
leading federal discovery cases, the courts have imposed mandates requiring outside and in-
house counsel, IT personnel, witnesses, and other stakeholders to timely collaborate on
discovery. As a result, counsel and their clients and electronic discovery specialists have to re-
engineer the discovery and production process to prevent the management and cost risks in
handling electronic discovery. This simply requires a new way of thinking and immediate change
on the part of companies and other stakeholders.
At a minimum, it is necessary to develop a set of litigation hold or regulatory compliance best
practices focused on legal obligations, technology advancements and a commitment to work
together. In an unprecedented fashion, the courts in several federal decisions have set forth in
surprising detail discovery and compliance obligations for legal counsel. These obligations call
for development of best practice protocols to ensure the preservation and disclosure of electronic
evidence. These past decisions and future mandates have to be woven together with a
corporation’s document retention policies to ensure preservation and avoid spoliation charges.
With paper discovery, one could compartmentalize the requisite identification, preservation and
other production steps. Not so with electronic evidence, all of the stakeholders must be part of
the procedural and substantive answer to data preservation. This will ensure that you have a
“legally defensible collection”.
Without changing your methodology of handing evidence, it is highly unlikely that your firm or
clients will survive this transition.
Michael Arkfeld, Esq. is an educator and consultant and is the author of the Electronic Discovery
and Evidence treatise and originator of the E-Discovery and Evidence Best Practices seminars.
He can be reached at michael@wp.elawexchange.com.

1. Creation of electronic information is often made without concern as to formality or an understanding that it can be later discovered-as seen in the Microsoft antitrust trial.
2. Drafts and redrafts of electronic documents often can be discovered. Both Microsoft Word and WordPerfect have features that allow prior drafts of word processing documents to be recovered and viewed.
3. Metadata or “embedded data” is often contained in electronic files that allows you to view the author, persons who viewed the document and changes made to the document.
4. Electronic evidence is more easily deleted, destroyed or altered. But “deleted” information may be “undeleted” and files opened and viewed and the information may not have been deleted from all computers.
5. Once “discovered,” electronic information can be searched by word, phrase or date. If you obtain electronic information through discovery, it usually is in a full-text format that lends itself to be searched via software.
6. Whereas paper documents are usually located in certain files and file cabinets, electronic information can be stored in many different formal and informal locations in a computer system. How electronic data are created and stored is very important. Interrogatories or discovery depositions should focus on the system the opposing party is using regarding the type of computer systems used, filing system, archival of data, destruction of e-mail, and so forth. This prevents costly
discovery and needless searching of electronic information. Finally, authentication and laying the foundation for electronic information for admissibility must be treated with extreme