Article

• Publication year: 2014
• Pages: 14
• Citation: Vol. 27 No. 4 Pg. 14

Article Vol. 27 No. 4 Pg. 14 Utah Bar Journal August, 2014

July, 2014.

eDiscovery: It's Time to Drop the 'e'

Stephanie Wilkins Pugsley

Much of our time as attorneys is spent wading through information seeking the proverbial needle in the haystack, whether it be the one email that will prove our case or the single spreadsheet that shows financial viability. Litigators live in the world of discovery; transactional attorneys are often mired in due diligence. Getting our arms around relevant information is becoming an increasingly dubious and expensive task with the exponential growth of electronically stored information (ESI). The days of simply photocopying and reviewing the contents of a file cabinet have passed.

Managing ESI Is Not Just for Litigators Anymore

Why then do attorneys hesitate at the concept of eDiscovery? The Sedona Conference defines eDiscovery as" [t] he process of identifying, preserving, collecting, preparing, reviewing, and producing electronically stored information.. .in the context of the legal process," encompassing both litigators and transactional attorneys alike. The Sedona Conference® Glossary: E-Discovery & Digital Information Management (3d ed), 18. Many lawyers claim not to "do" it. However, the basic information needed to do our jobs was born in an electronic format. Like it or not, attorneys are "doing eDiscovery." To ignore this fact is to "do it" wrong.

Why Discovery Is Scary in the Digital Age

Current trends underscore many attorneys' fears in dealing with ESI. The volume of available information is increasing exponentially. It is estimated that 89 billion business emails are sent daily. See The Radicati Group, Email Statistics Report, 2012-2016- Executive Summary, 3 (Apr. 2012), available at http://www.radicati.com/wp/wp-content/uploads/2012/04/ Email-Statistics-Report-2012-2016-Executive-Summary.pdf. Information is now discussed in gigabytes of data rather than document page counts. Typically, it is estimated that 1 GB of data contains approximately 3,000-30,000 documents, with a page count of 20,000-120,000. And the larger the volume of data, the greater the costs associated with getting the data produced to opposing counsel in a defensible manner. It is no wonder that attorneys and clients are not enthusiastic about eDiscovery. It can be unpredictably expensive.

eDiscovery Trends

Current trends in eDiscovery are being driven by judicial opinions, civil procedure, and ethics rules, as well as case management decisions. Several common denominators are: (1) a recognition that dealing with ESI is an increasing, not decreasing, field; (2) the acceptable technology is changing at a rapid pace; and (3) an emphasis on controlling costs.

Judicial opinions regarding eDiscovery, including litigation hold requirements, spoliation of evidence, sanctions, and the acceptability of new technology in the eDiscovery arena are being issued at a rate almost as high as the overall increase in data. Courts apply the controlling principles of reasonableness and proportionality to the...