Electronic discovery roundtable: Part I.

• Date: 05 May 2004
• Author: Anderson, Tony

Byline: Tony Anderson

WISCONSIN LAW JOURNAL: What would you say to lawyers who think that they're going to approach electronic discovery the same way as they would approach paper discovery?

WILLIAM J. MULLIGAN: If you are preoccupied with only paper discovery, which we still have, you are going to be potentially missing significant and substantial evidence in a case. We're living in an era where there is an information explosion. There are studies that indicate that about 90 percent of all written documents are prepared on computers. And there are extensive volumes of computer-generated data that is never printed.

If you ignore the possibility that there is a significant amount of electronic evidence, you stand the chance that you will have a bad result in litigation, the potential of malpractice claims, and the potential of ethical concerns being raised. This electronic evidence may be more significant than paper documents because it will - with the metadata that is available with the electronic documents - indicate who initiated the document, whether it was obtained from an earlier draft of a document, who may have gotten blind carbon-copy or who got copies of the document electronically, revisions that were made, or changes that were made. There is significant evidence there that needs to be obtained.

STEPHEN E. KRAVIT: I would add that any lawyer who's been practicing since the 1970s will find that the issue of documents in other than paper form is not new since two provisions in the Wisconsin Civil Procedure Code deal with such information. The first being the most general, 804.01(2)(a), which is the general provision governing discovery and relevancy. Everything we talk about today is going to be moderated by relevancy, the ordinary standard that parties can obtain discovery regarding any matter, not privileged, which is relevant or reasonably calculated to lead to the discovery of relevant, admissible evidence.

You'll note that in 804.01(2)(a), which is not a discovery provision, per se, it defines "relevant evidence" as, "including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things." Then if you move over to the actual Discovery of Documents provision it says, that the scope of production of documents would include, among documents and other things, "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form."

So the present rules and ones that have been in effect for a very long time have anticipated document discovery that would involve more than just a paper document. Anyone who has been not thinking about that for the last 20 years or so has not really been using the rules to their full degree.

MULLIGAN: The Federal Rules are substantially the same, except that they also contain a provision requiring that the parties meet for a discovery conference and make initial disclosures. That has been interpreted by the courts to require an absolute duty of disclosure that you possess your documents in electronic form.

There is a Bristol-Myers Squibb class action case in which the parties met and agreed to produce responsive documents [In re Bristol Myers Squibb Securities Litigation, 205 F.R.D. 437 (D.N.J. 2002)]. They were produced pursuant to an agreement that one party would pay so much per page for them. But what the drug manufacturer failed to disclose was that these documents all originally existed only in electronic form, and they blew back paper copies.

The court refused to require the payment of the fee -- the money for copying charges - and also sanctioned the parties and counsel for failure to disclose the existence of these documents in electronic form and required their later production in that electronic form.

ROSS L. KODNER: I predict, in relatively short order, that among all malpractice claims filed in every jurisdiction in this country, we will see the highest incidence shift away from issues related to trust fund management, et cetera, to litigation-related malpractice. When Bill mentions the Federal Rules and the absolute duty to disclose, there's a big presumption there that the litigator who is managing that process, really understands what there is to disclose.

What we're experiencing is this absolute head-on collision between what has traditionally been compartmentalized as technology in law practice with substantive law and procedural law. Today you can't practice law -in any area of practice, but certainly in any area that has any litigation component - without understanding the underlying technology concepts of the forms that discoverable information can take, the kinds of experts to use and how to evaluate forensics...