Technology-wary attorneys have been smarting since last December, when new rules took effect for storing and tracking data that are subject to electronic discovery. (Fed. R. Civ. Proc. 16 and 26.) But an emerging profession may offer relief: "There's a new market out there for e-discovery experts," says Magistrate Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California.
Now, attorneys just have to decide when?or whether?they need to call in an e-discovery expert, either from their own staff or from an outside firm.
This new profession?which includes lawyers, IT experts, and former law enforcement officials-has cropped up in the past few years in the form of expert witnesses, legal-service vendors, and practice groups within law firms. And lawyers are turning to them to comply with the trickier aspects of the new rules, such as the requirement for parties to agree to an e-discovery plan within 120 days of serving a complaint. During such meetings, e-discovery experts can explain arcane, but necessary, points about native data formats and backup tapes. This can help attorneys assess their discoverable data and how best to access it, perhaps with help from a software program or keyword-search strategy. A client's IT staff can then implement the plan, or a consultancy can provide its own technicians.
E-discovery experts may also be able to gauge how much wiggle room attorneys have within the new rules. Bill Coats, an IP partner at White & Case's Palo Alto office, says experts can help attorneys determine and argue, for example, that electronically stored information (ESI) is "not reasonably accessible because of undue burden or cost," in the hope of exempting it. And they can help lawyers navigate the new rules' unfolding nuances: In a federal case in Los Angeles, for instance, a judge recently required an Internet search-engine operator to create and store logs of user activities as part of its discovery obligations. (Columbia Pictures Indus. v. Bunnell, No. CV06-01093 FMC.)
Another potential benefit is the atmosphere of legitimacy and good faith e-discovery experts can engender. "It makes it clear that you're doing your best to get accurate information," says Coats, who never attends a discovery meeting without his client's technical expert. Third-party data-collection specialists can be "especially useful in contentious issues," adds Julie Locke, a Los Angeles?based senior e-discovery specialist with LexisNexis's e-discovery service, Applied Discovery. She says that outside experts can help ward off even the perception of bias-in ways a client's in-house technical staff can't.
But these experts don't come cheap. Hourly rates can easily run $300 to $400 an hour for data retrieval alone. Still, some weigh these fees against the potential expense of sanctions and lost cases: Morgan Stanley, for example, lost a $1.4 billion jury verdict in 2005 when the attorneys mishandled ESI.
Nevertheless, even some e-discovery consultants caution against the over-use of outside experts. Except in complex cases, "a paralegal who has been sent to a workshop and trained on a piece of software can probably handle e-discovery," contends Patrick McKee, a computer-forensics expert with Excelsior Services, a consultancy in Pacifica. The market seems to agree: Over the past two years, few attorneys have anted up for McKee's data-retrieval services, billed at $250 to $350 an hour.