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ELECTRONIC DISCOVERY – WHY IT MATTERS IN ALMOST EVERY CASE By Meredith Causey
stored electronically (i.e., on a computer), there is a good chance that most documents received or requested during discovery began in an electronic form. So, why does it matter that these documents began in an electronic form? It matters for several reasons. First, electronic documents contain additional information that paper documents do not; second, key components of electronic documents may be hidden when printed to paper; and third, information that is stored electronically is more voluminous than paper documents. These differences are important to keep in mind when preparing for discovery. Meredith Causey is an attorney specializing in electronic discovery and the owner and co-founder of eZdiscovery Solutions, LLC. Prior to law school, she worked for a top international law firm providing litigation support on e-discovery projects and handling the technical responsibilities of presenting electronic evidence at trial. Meredith graduated with a B.S. in Political Science from Vanderbilt University and earned her J.D. from the University of Arkansas Little Rock. She is licensed to practice in Arkansas. As technology advances and the majority of an individual’s work, both personal and professional, is conducted on a computer, electronic discovery is becoming more and more important for attorneys to understand. Today, attorneys who do any discovery at all have most likely encountered electronic discovery, whether they knew it or not. Electronic discovery, or e-discovery, is simply the discovery of electronic documents and data. Given the fact that over 90 percent of all information that is created today is created and 14
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Additional Information Contained in Electronic Documents When electronically stored information, such as e-mail, word documents, or excel files, are printed to paper, a portion of that record is lost. Unlike paper documents, where what you see is what you get, electronically stored documents contain information not seen on its surface. Examples of this information include the name of the file, where the file was saved on the computer, who created the file, the date and time the file was created, and when the file was last opened. Most attorneys would consider it important to know if a document was saved in a folder titled “delete in case of lawsuit” or “incidents that might lead to a lawsuit.” Likewise, a word document named “known_ equipment_defects.doc” is important where this phrase is never seen in the text of the document itself. Information Missing from Printed Electronic Files Certain electronic documents lose key components when printed to paper, leaving an attorney with an incomplete assessment of that document. Excel spreadsheets often contain formulas adding, subtracting, divid-
ing, or multiplying certain columns that are not visible when the file is printed. The comments contained in a word file are often not shown when the document is in paper form. A PowerPoint presentation might contain speaker notes hidden on the printed version. And, a printed e-mail could easily conceal the blind carbon copy (Bcc) field that identifies additional individuals who received that e-mail. These are just a few examples of how information can be missing from the paper version of an electronic document. Volume of Electronically Stored Information The volume of electronically stored information is almost always significantly greater than that found in paper files. This increased volume can be attributed to several factors. Electronic files can be copied much easier than paper files; there are often several versions of each electronic document; and with even the cheapest laptop storing millions of pages of information, storage space is not an issue, unlike file cabinets that contain paper documents. E-mails also contribute to the large volume of electronically stored information. Consider the number of e-mails that are exchanged daily, even in a small business or on a personal e-mail account. E-mails have replaced many phone conversations and mailed letters. With e-discovery, the volume of information is almost always a factor to consider. Unless you represent the rare client who has managed to avoid using a computer or smart phone, any discovery you conduct is e-discovery. Therefore, it is important to understand a few key differences between electronic documents and paper documents to ensure competent representation of your client. The lawyer who understands e-discovery or enlists the help of an e-discovery expert gains a competitive advantage at the onset of litigation. ●