Currently, electronic discovery or e-discovery as it is affectionately known controls the discovery landscape in any litigation setting. Litigants no longer accept boxes of papers printed and neatly produced in response to discovery requests or through the disclosure process. More importantly, they are not required to accept hard copies when documents produced are voluminous or when documents are electronically stored. Case law has set the stage for e-discovery, and it is here to stay. The genie is out of the bottle.
It is important to understand that e-discovery is not new. It didn’t just happen in the last couple years. It didn’t just happen in the last 5 or 6 years. It started almost 10 years ago. The case that first set the stage for e-discovery is the now famous Zubulake v. UBS Warburg, LLC, 382 F.Supp.2d 536 (2005). However, you will still find many involved in litigation reluctant participants to this process, or worse, resistant to this process, citing various reasons or excuses to avoid e-discovery: 1) it is too costly; 2) we do not have the manpower to separate and collect data from our computers; 3) it is too voluminous, and most data are not relevant to the case. The list goes on.
The bottom line is, like it or not, e-discovery is the present and future of the litigation discovery world.
So, how can a paralegal or legal assistant become crucial to this e-discovery process?
A) Keep up with developing trends
As a paralegal your role is not fulfilled by simply following your job description and doing all the tasks well. You need to know and stay on top of changes in the e-discovery and discoverability of electronically stored information (ESI). There are multiple ways to do so, and certainly this is only a short list to give you a general idea:
- Attend seminars;
- Network with other paralegals or e-discovery professionals;
- Subscribe to publications or newsletters on the topic;
- Work with vendors.
B) Assess technology
It is safe to assume that all organizations, big and small have technology in place. It is the sophistication level of these technologies that differ. It is also safe to assume that most employees in an organization, from the CEO to the person in the service center, own a smart phone or some other electronic device, and use them at work or for work every day. This is an important piece of information to keep in mind. E-discovery is not just what is stored in the company’s server. E-discovery includes information stored on the hard-drive of employees’ desktop or laptop. It includes what John CEO, or Jane Engineer has in his/her smart phone, or tablets. The more devices we use, the more we have to make sure that relevant data from these sources need to be captured. But, don’t let that scare you. There are lots of e-discovery and ESI professionals in the marketplace who have dedicated their careers to helping organizations, law firms, attorneys and paralegals in this process. In order for the process to be successful, however, we need to inform our e-discovery professionals where and how data are stored and then decide on how to collect, and how much to collect. That process is another topic that will be discussed at a later time.
C) Recommend the right e-discovery professional
As a paralegal, this is a very important task. Your firm client is about to spend a substantial amount of money in this process. Your firm owed it to your client to insure that you hire an e-discovery professional whose testimony is going to stand up to scrutiny, if court testimony becomes necessary.
- Check the credentials of your e-discovery person. Ask the e-discovery company who will be the individual who will be providing testimony if it becomes necessary. The representative who comes to visit you in your office is usually not the e-discovery expert who will testify. So, make sure you ask the question, and check his/her curriculum vitae; look for qualification, experience and on-going education;
- The e-discovery company should have the technology, multiple review platforms, and personnel with sophisticated skills to assist with this process. Find out what these platforms are. This is another area that is evolving quickly, and search capabilities available for data review are constantly being updated and becoming more efficient.
D) Obtain client’s approval
Now that you have taken all the steps, interviewed your e-discovery professional with your attorney and obtained a cost-estimate for the project, it is time to inform your client how much it is going to cost. This can be an expensive process that needs to be incorporated into a litigation budget. The client needs to approve and be comfortable that this is an expense that it needs to incur. Of course, the cost is not etched in stone because the amount of data and the collection process are two variables that are difficult to predict at the early stages. You do, however, need to monitor and keep an eye on the budget. Ask your vendor if they can assist you in this process by sending you an update if a certain process will cause the budget to exceed.
Most likely, your e-discovery vendor will require the firm or organization to sign a contract that sets forth the scope of work and the cost of the project. It is perfectly fine to obtain competing bids for your project, but make your decision based upon which vendor best suit your client’s needs and budget.