Electronic discovery – Of bytes and briefs

May 17th 2007
From The Economist

The courts are struggling to cope with information technology

A CHICAGO law firm recently put up a billboard with the slogan “Life’s short. Get a divorce.” Also on the billboard were pictures of a hot babe in her underwear and a hot hunk in a towel–a sample of the delights that await the newly single. This is the kind of lawyer story that makes the evening news. Deeper, broader problems with America’s legal system tend to be ignored. Electronic discovery is one.

What’s that? Well, let’s say you follow that Chicago law firm’s advice and sue for divorce. And let’s say your soon-to-be ex-spouse gets angry. His or her lawyers might then demand to inspect your hard drive so that they can, for example, acquaint the court with your love of porn before it decides who keeps the children.

As technology changes the way people communicate, the legal system is stumbling to keep up. The “discovery” process, whereby both parties to a lawsuit share relevant documents with each other, used to involve physically handing over a few boxes of papers. But now that most documents are created and stored electronically, it is mostly about retrieving files from computers. This has two important consequences.

First, e-discovery is more intrusive than the traditional sort. Catty or salacious gossip, the kind that was once swapped at the water cooler, is now often committed to e-mail. This is easy to subpoena and virtually impossible to erase. There is always a back-up somewhere, so even if you delete the e-mail privately denigrating a stock you are publicly urging your clients to buy, it will still be read out in court. If your firm is sued for sexual discrimination, expect the plaintiff to demand all the lewd e-mails your male executives have ever swapped with each other.

Second, e-discovery is more burdensome than the old sort. In the old days, if a big firm was sued, it might have to produce half a million documents, says Malcolm Wheeler, a lawyer who represents big corporate clients in Denver, Colorado. Now, it would have to produce many times that: e-mails, attachments, voicemail recordings and so forth. This can be fiendishly expensive. In a recent case, says Mr Wheeler, his client had to pay 31 lawyers to spend six months ploughing through electronic documents just to figure out which ones ought to be handed over the plaintiff. There is a danger, he says, that big firms will settle with frivolous plaintiffs just to avoid the costs of disclosure, which in turn will encourage more frivolous lawsuits.

Mr Wheeler ranks e-discovery as “the single most significant change to the legal system” since he left law school in 1969. Richard Baer, the top in-house lawyer for Qwest, a telecoms firm, will not go quite so far, but he agrees that it is a problem.

He thinks his firm spends at least 25% more on legal fees relating to discovery than it did two years ago. What worries him more is that the rules are so unclear. Do you have to save every version of every document and every fiddle to a computer-aided design? How do you decide what is relevant?

On May 16th a think-tank called the Institute for the Advancement of the American Legal System, at the University of Denver, suggested some guidelines. One is that the rules need to be clearer, especially in the states. Another is that judges need to familiarise themselves with the relevant technology, so they can make informed rulings as to whether a disclosure request is reasonable. They should also learn about, and alert litigants to the existence of, software tools that allow quicker searches for relevant documents. If judges understand what e-discovery is about, they are more likely to issue coherent precedents. If not, the legal system risks being over-loaded.

  1. #1 by i_love_malaysia on Friday, 25 May 2007 - 4:32 pm

    Unless u have the power to stop change, else u need to change to keep up with the world!!

  2. #2 by BioLovepulse on Friday, 25 May 2007 - 4:36 pm

    This is not only a legal issue. It is also an issue of computer security. I think, IT graduates should be called to work in a legal firm to aid in the process of e-discovery!

    Behold, individual’s privacy is threatened in this process as well.

  3. #3 by izrafeil on Friday, 25 May 2007 - 5:43 pm

    an email is never deleted from the system, see Microsoft case! so no raunch naughty emails and affairs in the net!

  4. #4 by undergrad2 on Friday, 25 May 2007 - 7:39 pm

    Electronic discovery in the context of our courts system and our justice system?? Don’t make my grandmother laugh!

  5. #5 by undergrad2 on Friday, 25 May 2007 - 7:49 pm

    Our lawyers are struggling to understand the Rules of Discovery and the few pieces of paper that make it to their desk to be bothered with new technology in the form of electronic discovery.

    Oftentimes evidence is withheld and goes unnoticed and issues not litigated. In our system, justice moves at a snail’s pace, prisoners are lost in the legal labyrinth and often forgotten. Without the benefit of legal aid, indigents among them over the years have lost memory of why they were there in the first place.

    The use of e-discovery and how it might help settle cases?? My foot!

  6. #6 by orchidlah on Saturday, 26 May 2007 - 6:43 am

    In Malaysia, it is the small device called a handphone which many use to send SMS and have access to the internet as well. You just do not know who is the actual person holding the handphone or sitting behind the screen. Just because there is a registration does not mean no one else can lay their hands on it. To his shock, the real owner might receive a court order and he will be wondering high and low just what is going on. Or some clever I.T nut might just be able to tap into your line for their own crazy fun.

  7. #7 by Count Dracula on Saturday, 26 May 2007 - 8:36 am

    Yep. It is best not to have those modern gadgets. It works both ways. Better to go without handphone or pager. Your wife will not be able to trace you and husbands may not be able to divorce you.

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