By Mark Prewitt, Director of Information Technologies
In today’s society, the storage of documents is increasingly in electronic form. To search these documents requires some knowledge of technology and the best application of this technology to ind the important facts in the tsunami of electronic information. In this paper, we
will discuss the problems, pitfalls and potential solutions for managing such a deluge of data.
Searching through this ocean of data for cases is usually referred to by one of several common terms, Electronic Discovery, e-discovery, Electronic Data Discovery (EDD), or Electronically Stored Information (ESI). Data is collected from sources known in the industry as custodians, via forensically sound methods that allow attorneys for both sides (Plaintiff and Defense) to review the information for relevance to their case. As an example of how tedious this can be, a case may contain anywhere from a few hundred megabytes of email files to a case which may entail server hard disk images, resulting in terabytes of data. Regardless, the mere presence of this data requires that an attorney know something about technology or hire someone who does. This technology knowledge requirement has been slowly creating new problems for the legal industry as attorneys realize that mistakes in managing this information can cost them through sanctions.
The focus of this paper is on the dangers that face attorneys, as they must evaluate the electronic data in their cases. My own personal email contains more than 50,000 emails. Imagine the magnitude of email and other electronically stored documents in a company with ten or more employees! The task is frightening to manually review each of these emails, just to find
the few that are relevant to a case – it’s akin to the proverbial needle in a haystack. This need has spawned an entire litigation support industry as well as created sanctions due to improper handling of this torrent of data. Because of this overwhelming flood of data, the litigation
support industry has developed tools to help shrink the data to a manageable amount.
One way that tools provide assistance is to filter documents by using keywords, dates, or concepts to shrink the pool of data into something more useful. It’s the use of these filtering
tools that has recently become more complicated due to improper application and sanctions. An example of how mishandling data can affect a case, we cite the Oualcomm Inc. v. Broadcom Corp.1 case in which the attorneys for Qualcomm were blasted by the judge for ‘aggravated
litigation abuse.’ The Judges opinion, on top of previous opinions on electronic discovery in the last few years, is defining the course that attorneys must navigate in this swelling sea of data.
This growth in electronic information has invaded the legal market and caused long established, well paid attorneys, to choose whether to go back to school and learn about technology, or hire people to do the work for them, so they can concentrate on the law.
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