Electronic Discovery: The Good, the Bad, and the Ugly – Part 2

Hallway with row of tower servers in data centreElectronic discovery places a heavy burden on counsel.  Not only is the practitioner, as always, required to comply with procedural rules, but he/she must thoroughly educate the client about the intricacies of electronic discovery. Because the client may not necessarily think of discovery in electronic or digital terms, the learning curve may be steep.  At the outset, it may be helpful to inform the client that an estimated 93 to 95% of all information is produced digitally, the majority of which will never be printed.  The notorious Enron case provides a stark example:  250 terabytes of information were collected (estimated to run 78 billion pages of documents if printed).

Sanctions are imposed on practitioners who do not fully comprehend the scope of electronic discovery or who rely too readily on the assurances provided by clients that they have searched high and low for all data stored electronically, only to discover that the diligence of the search for severely lacking.  The keys to effectively managing litigation in light of rules related to electronic discovery are client education and the willingness to demand that the client do better, look harder, and ask more questions.  Clients need to understand that every effort should be made to identify and inventory the following digital storage methods:
  • PCs and servers
  • External drives, memory sticks, thumb drives, compact flash cards, SmartMedia cards, MultiMediaCard, Secure Digital, xD and XQD, and USB flash drives.
  • Cell phones/smartphones, Blackberry devices and other PDAs.
  • Digital cameras (including smartphone cameras), GoPro and other portable HD video devices, MP3 players.
  • Web pages.
  • ISPs
  • Fax machines, photocopiers, scanners, most of which have hard drives on which data is stored.
  • Voicemail, email, Skype/instant messaging/direct messaging logs, VOIP logs.
  • Texts/Snapchat/Facetime records
  • The Cloud

Although not an exclusive list, this provides the most frequent media used by individuals and companies to collect and store information.  In order to competently represent the client, the practitioner must become familiar with the client’s information systems.  Only then can counsel begin to manage electronic discovery effectively.

If you would like more information about eDiscovery or how TERIS solutions can assist you, please contact us!

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