Just a decade ago, before there was ever an e attached to it, discovery was a glorious paper chase-a treasure hunt, if you will-for physical documents you could actually pick up and photocopy to your heart's content. But now, with more than 90 percent of all documents stored in electronic form (and less than
a third ever printed), it would be more than just bad strategy for litigators to fail to vet text files, spreadsheets, databases, backup tapes, PowerPoint presentations, and emails-not to mention hard drives, floppy disks, CDs, network servers, cell phone and GPS records, instant messages, surveillance tapes, off-site databases, personal computers, and partially deleted files. It would be malpractice. (In fact, amendments to the Federal Rules of Civil Procedure that went into effect in 2006 essentially elevated electronic discovery from a best practice to a mandatory practice. (Fed. R. Civ. Proc. 16(b) 5.))
Of course, e-discovery can be a royal pain in the keister for those who have to do it, and the pain is especially acute at smaller law firms.
"The small law firms are in a real dilemma when it comes to e-discovery," says Richard Best, a retired commissioner of California State Court who's now a discovery referee and consultant. The big firms don't worry as much about the high cost of e-discovery, they just pass it along to their clients, Best explains. "But when you're a small firm that's watching every penny and you don't have clients with endless budgets, it's much harder. I see a lot of small firms grasping for advice about what to do with e-discovery."
The rise of e-discovery has spawned a $2 billion industry of third-party vendors all jockeying for a piece of the action. According to a 2006 survey by management consultants George Socha and Thomas Gelbmann, e-discovery revenues have soared 51 percent since 2005, and the overall e-discovery market is expected to double by 2009. The top 30 e-discovery providers alone raked in about $1.08 billion in 2006.
E-discovery has brought about a kind of role reversal in the legal profession: Now it's the lawyers who find themselves surrounded by circling sharks. Once an e-discovery vendor identifies an attorney or law firm as a potential client, there's often no end to the sales pitches, product demos, complimentary mouse pads, and follow-up emails from perky PR reps.
For attorneys, the most important first step in preparing for e-discovery is to get educated before the sharks come calling. Some firms even designate one person on staff as the resident
e-discovery expert, because the technology and the laws governing it change so rapidly.
Breaking Down the Process
The e-discovery process can be broken down into several discrete steps. Some vendors specialize in particular areas, while others offer one-stop shopping.
In the first stage of e-discovery the vendor sits down with attorneys and helps determine the scope of electronically stored information that might be pursued during discovery. Attorneys or their agents who will perform the identification, preservation, and collection activities need to know basic technical information, such as the number of network servers, workstations, personal computers, and backup tapes to be harvested for the client.
The second step in e-discovery is harvesting, when the electronic data is copied from the client's various storage systems and devices. An outside vendor may do this, or it may be performed by the client's staff. However it's done, though, the data must be copied in such a way that it doesn't alter any "metadata"-the information that describes the context, content, and structure of records and their management over time.
Next, the data is filtered through various culling techniques, then reviewed for relevance and privilege.
Finally, there's formatting and presentation. The culled electronic documents are put into a uniform format so they can be reviewed and shared in a database. Sometimes, the documents are even printed out on paper, just like in the olden days. A selection of documents may be pulled out to be presented at depositions, hearings, or trials.
Finding an e-discovery vendor that's right for you involves evaluating which of these steps in the process pertain to your case. (For a partial list of vendors, see the table below.) Sometimes, all you need is essentially a harvester-a vendor who can competently copy electronic data that's already been identified as relevant. Other times, you'll need a vendor who can handle all aspects of the e-discovery process, from preliminary assessment all the way through presentation at trial.
A good way to start your search is to ask other attorneys about their experiences with particular vendors; use their recommendations to start narrowing your choices. This assumes, of course, that you have colleagues in other firms who are willing to share information. As one lawyer told me, "A lot of times when a lawyer finds a good e-discovery vendor, he doesn't want to tell anyone else because he considers it a competitive edge."
Past the Hype
When you approach an e-discovery vendor for the first time, beware of being oversold. It's rare that a vendor admits the company or software product might not be up to the task at hand: "Of course we can do it" is the mantra of the industry. One way to get past the hype is to ask the vendor to show you specific cases it's worked on with requirements that closely resemble yours. At least a vendor who's done similar work in the past won't be learning on the fly-and on your dime.
Many attorneys recommend seeking out vendors before you need them, not when you're pressed to turn around a big e-discovery project quickly. Just as you should never walk onto a used car lot when you have to buy a car immediately, never approach an e-discovery vendor in a state of desperation. You might as well leave your wallet at the front desk and walk away.
Find out ahead of time how a particular vendor approaches e-discovery-how it harvests and sorts the data, and how it imports the files into your database for sharing. Get bids from several vendors, and then double back and find out why one firm's quote differs from a competitor's.
Lastly, remember that the education process never ends. E-discovery gets more complicated as the number of electronic storage devices explodes; having at least one staff person stay on top of the changes is essential. There are several websites where you can continue your learning. One is Discovery Resources (www.discoveryresources. org), which, it should be noted, is sponsored by Fios, a leading e-discovery vendor. But the site is no vendor
shill; it's a comprehensive overview of current e-discovery news, case law, and analysis.
The Sedona Conference (www. thesedonaconference.org) hosts conferences and mini think tanks on a wide variety of legal issues, including e-discovery. Next month in San Diego, the group will hold its second annual program on "Getting Ahead of the E-Discovery Curve." The conference will include working panels, discussion groups, and exhibits by quietly salivating e-discovery vendors.
Best, the discovery referee, has assembled a website that focuses specifically on California discovery law (californiadiscovery.findlaw.com). Even though Best is in the discovery business full time, he's still educating himself-for example, he recently took a course to learn more about how databases work.
What's Best's best advice about e-discovery? "Start early and cost it out," he says.
Tom McNichol is a San Franciscobased