Electronic Evidence: Zealous Advocacy in the E-information Age

• Publication year: 2002
• Pages: 63
• Citation: Vol. 31 No. 11 Pg. 63

31 Colo.Law. 63 Colorado Lawyer 2002.

2002, November, Pg. 63. Electronic Evidence: Zealous Advocacy In the E-Information Age

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63

Vol. 31, No. 11, Pg. 63

The Colorado Lawyer
November 2002
Vol. 31, No. 11 [Page 63]

Specialty Law Columns
The Civil Litigator
Electronic Evidence: Zealous Advocacy In the E-Information Age
by David H. Schultz, J. Robert Keena

The Civil Litigator column addresses issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year

Column Editor

Richard L. Gabriel of Holme Roberts & Owen LLP, Denver - (303) 861-7000

About The Authors

This month's article was written by David H. Schultz, an electronic evidence legal consultant for Kroll Ontrack, Inc., Minneapolis, Minnesota, a company specializing in electronic discovery and computer forensics - (952) 949-4040, dschultz@krollontrack.com; and J. Robert Keena, Eden Prairie, Minnesota, an associate with the firm of Hellmuth & Johnson - (952) 746-2113, jkeena@jhlawfirm.com.

This article provides an overview of significant litigation issues and pitfalls relating to electronic evidence.

On the day they are admitted to practice law, lawyers swear under oath to provide zealous advocacy to all clients. Colorado Rules of Professional Conduct ("Colo.RPC") require a lawyer to " ... provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."1 Maintaining such legal skills and knowledge necessitates ongoing education on changing legal practices. For the modern litigator, this includes a basic understanding of the use of electronic (also referred to as "e-") evidence.

Attorneys today are faced with a seemingly overwhelming array of new challenges created by the proliferation of information stored in electronic formats. With 93 percent of business documents now being created electronically2 and only 30 percent of those documents ever being printed,3 many longstanding document management practices now are outmoded. From the investigation and pre-discovery stages of a lawsuit through trial and beyond, true zealous advocacy requires an ability to request, produce, and manage e-evidence. At the same time, many of the age-old measures and practices that apply to the proper management of paper evidence can be applied effectively to electronic evidence.

This article examines the distinctions and commonalities between electronic and paper evidence. It discusses rules of evidence as they pertain to e-evidence. Finally, the article provides practical suggestions on issues pertaining to electronic evidence, including spoliation, preservation, and discovery.

Comparison of Electronic And Paper Evidence

Many similarities exist between traditional discovery practices and e-discovery practices. The attorney's goal is no different - namely, to investigate, collect, review for privilege and responsiveness, and produce information from their clients. The typical objections regarding burden and discoverability still exist. The information at issue, however, exists in a very different form.

One main difference is that electronic material may be easier to review with the use of a database than paper evidence. For example, to get hard copy documents into a searchable format, it first is necessary to print, scan/"OCR" (optical character recognition), and code each individual document. It is more difficult to permanently discard electronic evidence than paper documents. Perhaps the most profound difference between paper and e-data is that the sheer volume of electronic documents is, inevitably, many times greater than its hard copy counterparts. Instead of digging through boxes in warehouses, attorneys must "dig" through volumes of files contained on hard drives, servers, back-up tapes, and other associated data storage devices.

Fortunately, considering the fact that electronic files typically contain more pages than paper files, the simple fact that the files are electronic allows more options when choosing the method with which to engage in this "digging" process. Tens of thousands of pages of e-documents can be searched in seconds with a single key term. This same search could take days or even weeks with paper evidence.

Short of the radical overwriting process that often occurs when storage media is recycled, e-data can be difficult to delete. Thus, electronic trails often continue to exist despite an author's intention to destroy them. A substantial industry has arisen with its sole focus on the retrieval of deleted data. Often, material that was thought to have been deleted proves recoverable in whole or part, and can be some of the most damaging evidence in a lawsuit.

Electronic data also may contain unguarded and spontaneous remarks. Ideas that individuals may not wish to memorialize on paper often are...