By Kenneth O. Kreis

Technology issues are having a significant impact on the practice of law. Yet many lawyers make little or no effort to ascertain the potential problems and adverse effects that can result from the failure to grasp the implications of such technology, particularly as to discovery and records management issues unique to electronic documents.

A lawyer only needs to look at how e-mail, Internet legal research and electronic documents have transformed the practice of law within the last 10 to 15 years to recognize the critical need to “get on board the technology train or get out of the way.” Three important aspects of these issues are discussed below to raise awareness of some of these problems.

Paper v. Electronic Documents
The review of storage boxes full of paper documents in response to a typical discovery request generally focuses on the words contained within the four corners of the documents. Unless there is some reason to believe that overt fraud or tampering is involved, the content of paper documents is generally taken at face value as to what the documents purport to contain (subject to later discovery depositions).

Analyzing electronic documents in discovery presents additional information including “hidden” evidence contained within the software coding of the electronic document itself that is typically not visible on its face, but is contained within the unique electronic language of the document. Examples of hidden data include terms such as “metadata,” “tracking history,” “html coding,” etc. Such “hidden” data may provide lawyers with a wealth of information to supplement discovery or to use for cross examination or impeachment purposes, and may damage the case by inadvertent disclosure of such information to the opposing counsel.

A critical concern for lawyers is whether their clients have any records management policies or procedures in place to store, recover or delete such hidden data prior to receipt of the first subpoena or to prevent inadvertent disclosure of the hidden data to opposing counsel.

(Question: How many lawyers ignore these valuable information resources, are unaware of them or bother to request the electronic files to obtain this type of information when provided with the paper documents only?)

Records Management Policy
A second critical factor often overlooked during the discovery process is the existence and implementation of a valid records management policy by the party whose records you are seeking to discover. Shredded paper documents without any backup copies or notes may be permanently lost to the requesting party. Such documents may have contained information critical to the development of your case, yet may have been successfully destroyed prior to the litigation in perfect legal compliance with a duly adopted records management policy. If you are counsel for a defendant corporate entity that has a history of negative litigation results such as Enron or Worldcom, your client’s undue retention of records can be quite damaging.

Forward-thinking counsel now consistently suggest that their clients adopt and implement a comprehensive records management policy, which includes a periodic records destruction component, to reduce the risks and costs of “fishing expeditions,” whether for paper or electronic documents. Expert witness expenses incurred in recovering or restoring tens of thousands of deleted or obsolete e-mails generated over a period of years can approach hundreds of thousand of dollars, which is particularly bad where the money wasted on recovering such data results in recovery of lots of obsolete or irrelevant information.

In addition, requesting the records management policy of the opposing party early in the discovery process will often give valuable insight into the manner, type, location and destruction of records pursuant to their policies and procedures. This may assist in preventing the otherwise lawful destruction of records and documents relevant to your case or in otherwise locating records of which you are currently unaware.

Records management policies cannot authorize destruction of known material evidence of wrongdoing, which would be a crime in any jurisdiction, but, if implemented correctly, they can be very useful as a risk-reduction procedure for your clients.

(An excellent resource for considering the adoption of record management policies, including great discussions of relevant legal related topics, can be found at the Web site of the Association of Records Management Administrators, www.arma.com. It includes extremely useful articles entitled, “The Sedona Principles: Best Practices, Recommendations, and Principles for Addressing Electronic Document Production” and “The Sedona Guidelines: Best Practice Guidelines and Commentary for Managing Information and Records in the Electronic Age”).

Document Portability
Discovery requests with broad language often omit basic information necessary to properly obtain relevant electronic data records. Lawyers often ignore the fact that many of the recipients of the discovery requests are secretarial or administrative staff unfamiliar with the multiple types of storage options in which electronic documents are saved, formatted or transported, unless such staff are computer geeks. A partial list of the types of media storage options is set forth below:

Mini-Secure Digital Cards
CD-R
Secure Digital Cards
CD-RW
8-inch floppy drive
DVD-R
5-1/2-inch floppy drive
DVD-RW
3-1/2-inch floppy drive
Tape drives
LS-120 high capacity
Laptop hard drive
Floppy drive
Desktop hard drive
USB thumb drive
External storage hard drive

Lawyers need to be storage-format specific in their discovery requests and, at a minimum, need to specifically itemize the multiple known types of media storage that need to be examined in order to place the party on notice to look for records outside of computer hard drives.

(Question: How many discovery responders at the client’s administrative headquarters would dare to ask the CEO for access to the USB thumb drive attached to the key chain in his pocket, which may contain relevant e-mails or other data, in order to properly and fully answer the discovery requests?)

Issues of discovery related to records management policies are increasingly important to the fundamentals of practicing law and expose significant risks of malpractice to those lawyers who ignore them at their peril. Hopefully, this article, which provided some relevant examples of problems that can easily arise in discovery, will assist lawyers that were previously unaware of the existence of these problems to better understand that they exist and must be addressed.