By Wright Noel and Eric P. Blank First of Two Parts

Technology has made the practice of law significantly easier. The legal profession, as measured in purely economic terms, has never been more productive.

Twenty-four hours a day, from any corner of the globe, a single attorney can create, manipulate, transmit, file and organize documents at a pace that would have required dozens of attorneys and assistants to match in the pre-Digital Age. Pleadings are filed electronically. Boxes of documents, reduced to bits of electronic data, are carried on two-ounce Thumb drives or hosted on high-speed Web servers for ease of portability and review. Letters have been replaced by e-mail. Even the effort of lifting the telephone has been eased by increasingly ubiquitous instant messaging.

This technological progress has brought an array of challenges and resource demands. In litigation -- and for those anticipating the possibility of litigation -- the greatest challenge of the past decade centers on the question of how to cope with electronic evidence.

For some attorneys, electronic evidence is a nightmare. It does not have to be. It can even be fun. The solution is to stay awake; be alert to changes; embrace opportunities; and practice basic safeguards designed to deter threats before they arise.

Electronic Evidence in a Nutshell
In its broadest sense, “electronic evidence” encompasses both: (1) electronically stored words, images or sounds (get ready to start searching Voice Over Internet Protocol -- VOIP -- voicemail records, saved on your clients’ computers as .wav files); and (2) the telltale electronic activity records that serve the same purpose.

Most common among this latter category, one hears of “metadata” -- usually reliable indicators of author, creation date, last access date, modification date, transmission path, proof of receipt, etc. (See Pages 5, 10.) Internet activity records, traces of applications, absence of documents and pointers to other machines and networks also have their value in the appropriate case. Some of this information is easy to locate; some must be found or testified to by a computer forensics specialist.

In nearly all cases, by far the largest share of resources will not be devoted toward specialized analysis or extraction efforts. Ordinary discovery of ordinary electronic documents -- millions of pages of them -- will present both opportunities and nightmares.

The Electronic Evidence Solution
Sorry, there is no simple solution. Even if there were, it would be outdated by the time this article went to print.

No matter how fervently attorneys, courts and parties aspire to handle electronic records using time-tested and widely understood paper files concepts, such efforts fail. A paper document is bulky and hard to hide or carry. As a result, paper documents are visible to the naked eye and a would-be thief of trade secrets would be hard-pressed to stuff more than a few hundred pages into his knapsack on the way out the door. A key-chain memory stick, by contrast, can hold hundreds of thousands of pages and be dropped into a pocket.

A paper document carries all of its “data” on its face. Electronic documents carry ancillary files that describe activity patterns, access records, editing history and other potentially important information. Certainly, in incredibly rare cases, paper might be tested for fingerprints, for ink aging or for chemical composition. With electronic documents, on the other hand, similar information is available to any person with rudimentary computer skills and often for free.

There is another critical dissimilarity between paper and electronic documents: Identification and preservation of important electronic documents must begin at the earliest stages of litigation. Seasoned litigators speak fondly of the days when, after litigation commenced, they would tell their clients to stop throwing away paper files, but would wait months or even years (large cases 30 years ago went at a snail’s pace just like today) before starting to gather and review paper documents. A similar delay today in retrieving electronic records will lead to charges of spoliation and the additional cost and burdens of hiring forensics specialists to track down and recover data that would have been at your client’s fingertips six months earlier.

Finally, there is the rabbit-like fecundity of electronic data. Paper is only copied as a result of human effort. Electronic data, on the other hand, reproduce automatically, even accidentally, and without invitation. When electronic data touch a host computer for any reason, whether to be reviewed, transmitted or even deleted, metadata is created. Inexpensive data storage, intensifying document retention laws (e.g., Sarbanes-Oxley) and the continuing spread of complex software applications ensure that the data glut will only increase.

An entire industry has arisen to answer the electronic evidence challenge. Legal copy service companies are now electronic production companies. Private investigators have become computer forensics specialists. “Electronic Evidence” is certainly among the most popular of seminar topics and, of course, news articles.

And yet, despite all of this training and all of the available support, problems persist. Most of these problems (all right, call them mistakes) are basic, and could have been avoided with a little care. Perhaps the following tips will help.

Stay Abreast of Technology
Make the effort to understand how technology will affect litigation and discovery. This does not mean that you need to understand how to use technology -- you only need to know that it exists and to have some idea of its capabilities.

Take your information technology manager out to lunch or read some articles on the Internet. Accept that a basic understanding of the sources and purposes of electronic data is an inescapable part of being a competent attorney.

You must know what VOIP is (see above). You must know the basics of metadata. You must know that a “server” is both an aggregate of hardware and, independently, a software function. How can you advise your clients on how to look for documents and evidence if you haven’t the slightest idea yourself?

Similarly, you should know your limitations. Recognize where your expertise ends and when more e-discovery firepower could help. Whether you need a forensics consultant, and for what purpose, will depend both on the type of case before you and on the actions of the attorneys and parties involved.

Stay Abreast of the Law
Your clients may be legally obligated to preserve or retain certain records, including electronic records. For example, the SEC requires that securities brokers maintain two years of electronic mail communications with customers in a form that can be retrieved within hours. You should know this, and understand the effect this will have on the court, before making a claim that it would be too burdensome for your securities broker client to search for and retrieve last year’s e-mail which is located only in backup tapes.

Courts across the country are making common law on the issues of spoliation and the duty of attorneys to search for and retrieve their clients’ electronic data. You should be familiar with the five decisions of the Zubulake case.1

Stay Abreast of the Rules
Barring surprise, the Federal Rules of Civil Procedure will be amended effective this December. These amendments emphasize the benefits of addressing the issues in electronic discovery early in a case and, to ease the angst involved in the discovery process, the amendments emphasize proportionality. The stated purpose of the amendments is to make the discovery process more efficient and less costly.2

In large part, the new procedures already are reflected in established practice. No attorney is searching or producing all electronic records. Federal courts already are refraining from massive electronic discovery production in all cases.3 Washington state courts will likely follow the federal courts’ lead even if the Washington Civil Rules are not similarly amended.

Here is a summary of some of the changes in the proposed amendments:

• FRCP 26(a)(1)(B) clarifies a party’s duty to include electronically stored information in initial disclosures.
• FRCP 26(b)(2) clarifies the court’s power to weigh the need for electronically stored information that is difficult to access (e.g., backup tapes) and makes off-line electronic information protected from discovery unless good cause is established.
• FRCP 26(f) will require the parties to attempt to agree on the disclosure and production of electronic evidence. The parties should address, for example, the need to restore deleted files, restoring backup or historic legacy data, media types and the procedures for producing electronic documents.
• FRCP 26(b)(5) and FRCP 45 will provide a procedure to follow for the inadvertent production of privileged documents that were stored electronically.
• FRCP 33 will clarify that an answer to an interrogatory involving reviewing business records should involve a search of electronically stored information.
• FRCP 34 will remove any doubt that electronic evidence is subject to production.
• FRCP 34(b) will allow the requesting party to specify the production format of electronically stored documents.
• FRCP 37 creates a “safe harbor” that protects a party from sanctions for failing to provide electronically stored information that is lost in the routine operation of the party’s computer system.
• FRCP 45 changes the subpoena rules so that they are consistent with Rules 26, 33, 34 and 37.

You should, of course, not rely solely on this summary. Read the amendments and their accompanying comments in their entirety yourself.4

(Next month: Controlling Your Case)

Eric P. Blank is an attorney with Blank Law & Technology P.S., a law firm offering software investigations and electronic evidence support to corporations, governments and attorneys. He can be reached at 206-256-9699; www.digital-legal.com.

1 Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y 2003) (Zubulake I); 2003 U.S. Dist. LEXIS 7940, No. 02 Civ. 1243, 2003 WL 21087136 (S.D.N.Y. 2003) (Zubalake II); 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubalake III); 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV); and 2004 U.S. Dist. LEXIS 13574, 2004 WL 1620866 (S.D.N.Y. 2004) (Zubalake V).

2 Report of The Judicial Conference Committee on Rules of Practice and Procedure, Conclusion to Rule 45 recommended amendments, p. 107, September 2005.

3 Hopson v. Mayor and City Council of Baltimore, 2005 WL 3157949 (D. Md. Nov. 22, 2005).