My Opponent Gets Evidence From My E-mail? It Would Take Me Weeks to Read Through My E-mail!
As we have discussed in a prior post, in modern complex commercial litigation, one of the biggest costs relates to discovery–the exchange of evidence between the parties. And electronic discovery is one of the biggest components of discovery–collecting e-mail and documents from computer systems, reviewing it to see if it is relevant to the case, providing it to your opponent, and then dealing with all the electronic documents you receive from your opponent. Even in a modestly-sized dispute, parties can end up exchanging tens of thousands of electronic documents. In large, complex cases, we routinely produce and/or receive millions of documents.
How can you deal with all these documents; both collecting your own and reviewing your opponent’s documents to see if they are important to your case? The short answer is that you mostly do not have to do anything. We will do it for you. And we have tools and techniques, some of which I discuss below, to stop the cost from becoming overwhelming.
Preserving Electronic Evidence
There is one critical thing you have to do: once you became aware of a dispute that might turn into a lawsuit, you need to preserve all of the evidence relating to it. This is key. Litigants have had their lawsuits thrown out (or worse, have had their defenses stricken) for failing to preserve and produce relevant evidence. When in doubt, preserve all evidence relating to a dispute, including electronic documents. This means making sure that you and your employees do not delete e-mails or other electronic documents on your computer systems. In particular (and something that sometimes trips people up), remember that some e-mail systems are set up to delete some or all old e-mails automatically. If you leave the relevant e-mails on your server, make sure you disable automatic deletion features for people likely to have relevant evidence.
The good news is that we can advise you on how make sure that your electronic evidence is preserved.
Collecting Electronic Documents
For a host of reasons, the easiest and least expensive way to search for and produce electronic evidence in all but the smallest of cases is to let your lawyers handle it. We have tools and techniques that will make sure things are done right (the only thing worse than doing something unpleasant is doing it twice because it was done wrong the first time). For example, in producing electronic documents, it is important to preserve the original file. If you forward, print or save electronic documents as new files, you lose the information (the metadata) that identified when the original file was created, modified, printed, sent or received. This might cause us to have to collect all your documents again to get the right information.
So, what should you do? We will work with you to determine what is best in your particular circumstances, but in general, it is fastest and best if we just create an archive of your e-mail account and any other collections of responsive documents and then winnow that collection down to what is relevant to the case using litigation support software made for the task.
Figuring Out What You Have to Give Your Opponent
If we have collected your electronic documents, there are different types of software systems that we use, depending on your needs and the size of the case, that allow us to search your documents in a variety of ways to figure out what we are obligated to produce to your opponent. There are search and analysis techniques we can use to winnow down the electronic documents we collect from you to limit the amount of time we spend looking at individual documents.
One concern in many cases is that you have communicated with us or some other lawyer about the dispute. You do not have to provide your opponent confidential communications with counsel reflecting legal advice. The good news is that we can do most of the work in locating such documents and making sure they are not produced to your opponent electronically.
Dealing With Your Opponent’s Electronic Documents
Not only will you likely have to worry about giving electronic discovery to your opponent, you likely will have to deal with your opponent’s production. Here, it is a good news, bad news situation. The good news is that a lot of evidence usually means that the chances of finding evidence good for your case has increased. The bad news is that it takes time to go through all that evidence. Whether we go through each page of your opponent’s production or use the electronic tools and techniques available to us to identify the documents most likely to be useful to you depends on a variety of factors, such as the evidence we are looking for, how many documents we have to review and how much is at stake in your lawsuit. We can work with you to find a solution that is best for you.
Electronic discovery presents the danger of increased costs and disruption of your business. Handled properly, however, the dangers are more than offset by the opportunities to reduce cost and increase the quality of the proof available at trial. If you are facing a lawsuit and have concerns regarding how electronic discovery will affect you, give us a call.