Electronic discovery in 2010: the past 10 years have proved that the escalating costs of data collection and review in discovery of the systems themselves, demand a major realignment of how business data is maintained.

• Author: Juhnke, Deborah H.

The year is 2010. Margaret Techway, a highly placed, first-generation, holographic memory engineer, has recently left her company, Innovations Inc., to join market-newcomer 3-D Strategies. Upon her departure, the "data-freeze" provision of Innovations' e-risk management policy was implemented automatically. A remotely performed, quick forensic review of her primary workstation uncovers suspicious activity during the previous two weeks, which gives Innovations cause to file a lawsuit against Techway and 3-D Strategies for trade secret theft. The challenges of proving the case, however, are just beginning. Blogs, biometric keys, and blades are only a few of the technological hurdles attorneys will face in developing the case.

Because instant messaging (IM] has replaced e-mail as the preferred form of business communication but has not been consistently monitored or saved at Innovations, there are no e-mail archives to search. What files there are had been copied to a removable thumb drive and taken by Techway, leaving little evidence of their removal. Asking for the thumb drive in discovery will be only half the battle, however, because Techway's thumbprint is necessary to access the drive. 3-D Strategies has adopted blade servers that are configured with a random array of inexpensive disk (RAID) format, meaning that Innovations' attorneys cannot simply ask for "the server" drive. The increased capacities and more complicated backup models hamper the plaintiff's attempts to narrow the scope of digital data discovery.

Finally, because Techway has participated in an unstructured public weblog (blog) dedicated to the discussion of new technologies (and sanctioned by Innovations), there are some questions regarding whether the trade secrets taken were, in fact, secrets anymore.

This brief vignette illustrates several points:

* Reliance on the "document" paradigm must change. In years past, discovery was comparatively simple. Ask for documents, get paper. But no longer. Much of what constitutes relevant discovery today and in the future will not, cannot, or should not be printed.

* Constant vigilance in understanding new technology as it relates to electronic discovery is required. Remember when there was no such thing as a personal digital assistant (PDA)? Over the past 10 years, fledgling technologies such as cell phones, digital documents, Web cams, and IM have become mainstream, and new sources of digital data present themselves daily. These new technologies offer risks along with rewards.

Organizations must accept that both technology and redesigned processes will be required to help manage, search, and produce an increasing variety and volume of data. As volumes increase and sources multiply, it will no longer be possible to gather and review all data.

* Computer-based discovery cannot be treated like paperbased discovery. The quill pen has given way to the digital pen, creating a responsibility to respect and protect this more fragile form of evidence.

When viewed in light of recent corporate scandals, topics such as these are more relevant than ever to records managers, lawyers, and corporate management. The past decade has provided some lessons, but there are many more to learn.

The Document Is Dead

There was a time when documents were described in discovery as "writings of every kind and description that are fixed in any form of physical media." The problem is that the common legal definition of a document is conceptually misleading in the context of electronic discovery issues. This is particularly true for collection and review of voice, video, databases, and Internet-based communications. When addressing these types of data, the average person's concept of a document--something that may be printed, read, and held in a person's hand--begins to blur.

Although expanding the legal definition of a document to include electronic data creates the obligation to produce such data in discovery, it offers no guidance on how that production should be carried out. Consequently, there is significant variation in methods used to produce electronic data for discovery. The assumed intent of production is to provide meaningful information, but there are ways in which this intent may be intentionally or inadvertently circumvented.

With paper documents or even word processing files, the meaning is fairly clear. There is a beginning, an end, and a logical structure. True documents tend to be self-contained, or at worst, refer to other documents in support of their content. This makes fitting digital data into the conceptual framework of a document particularly troublesome.

There have been attempts in the past five years or so to shoehorn digital data generated in discovery into the document paradigm, including printing it to paper, printing it to image, extracting it into file structures, and posting it to the Web for review. As technology advances, however, these techniques will become less suitable. They will fall short in...