72 The Alabama Lawyer 134 (2011). Controlling Costs in e-Discovery.

• Author: By Jenna M. Bedsole and John Mallery

Alabama Lawyer

2011.

72 The Alabama Lawyer 134 (2011).

Controlling Costs in e-Discovery

Controlling Costs in e-DiscoveryBy Jenna M. Bedsole and John MalleryYour client calls. Several key employees have left to start a competing business. The client believes that the -K. employees have taken crucial confidential documents or trade secrets either by e-maUing the information from their work computers to their personal computers or by downloading it onto external hard drives. The scenario presents issues of preserving or restoring information on your client's computers and, if litigation ensues, potential discovery involving the former employees' personal computers or external hard drives.

Mining for e-discovery can result in hundreds of thousands of documents. One gigabyte is the equivalent of 500,000 typed pages. Managing the vast amount of information can be expensive. Within the e-discovery rules, costs are a major concern. See Fed. R. Civ. P. 26(b)(2)(B) ("[A] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost."); Fed. R. Civ. P. 26(b)(2)(C) (requiring a court to limit discovery if it determines the expense of the discovery outweighs its benefit). Courts have grappled with the enormous cost of e-discovery. "As businesses increasingly rely on electronic record-keeping, the number of potential discoverable documents has skyrocketed and so also has the potential for discovery abuse." In re Seroquel Products Liability Litigation, 244 F.R.D. 650,653-54 (M.D. Fla. 2007) (noting importance in multi-district litigation for the parties to meet and confer to develop a discovery plan). "Too often, discovery is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter." See Rowe Ent., Inc. v. William Morris Agency, Inc., 205 F.R.D. 421,423 (S.D. N.Y. 2002). Nevertheless, counsel can proactively save his or her chent's time and money while at the same time offer quaUty representation. Below are a few tips.

Before the Case

Know the language. Lawyers speak their own language-we talk about torts or motions for summary judgment or intercreditor agreements. We learn it in law school and in our practice; the legal lexicon is one of the tools of our trade. With the information technology age, a new lexicon has developed. Here are some helpful words to know so lawyers can communicate more effectively with their clients, their computer experts and the court.

1. Metadata. One of the most confusing terms that lawyers will encounter as they begin to address electronically stored information in the discovery process is "metadata." Costly discovery disputes have arisen over a lack of understanding of the term. Metadata is not visible to the reader of a hard copy of a document-it is embedded data in the electronic form of the document. See Fed. R. Civ. P. 26(f)(3), Advisory Committee notes on 2006 Amendment ("Information describing the history, tracking, or management of an electronic file (sometimes called 'metadata') is usually not apparent to the reader viewing a hard copy or a screen image."); see also Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640,646-47 (D. Kan. 2005) (listing various definitions of metadata).

   There are two types of metadaia, file-level metadata and application-level metadata. File-level metadata is the term used to describe attributes of a file as it resides on a particular storage medium (hard drive, CD, thumb drive, etc.). Specifically, these are the created, modified and accessed times for the file on the device where it is stored. These are the date and time stamps as they appear in Windows Explorer. Application-level metadata are the date and time stamps as they are created in a particular application for a document. When using Microsoft Word, click on the "File" menu, then "Properties." The data shown in the "Summary" and "Statistics" tabs are some of the metadata for that particular document. Application-level metadata stays with the document as it is transmitted or moved from one place to another. This type of information is useful if it is necessary to determine when a document was created, who created or modified the document and what organization created the document. However, not all applications create the same types of metadata as Microsoft Word and other Office applications.

2. E-mail. The word "e-mail" means completely different things to lawyers than to computer forensic experts. To a lawyer, e-mail is what we receive and respond to at our desks or PDAs. To a computer forensic expert, e-mail refers to the entire process. In an organization, e-mail is generally configured where a centralized mail server (a powerful computer-the heart of the system) runs e-mail server software, most commonly Microsoft Exchange. Running on the users' desktops is an e-mail client, most commonly, Microsoft Outlook. The e-mail server hosts the "post office" where the users have their "mailboxes." In Microsoft Exchange, the post office is...