Litigators today must be prepared to collect, review and share an influx of electronically stored information (ESI) at the start of a case. Often, this data originates from many different places; emails, social media posts and online accounts are just a few of the ESI sources that provide relevant case data. The ubiquity of ESI makes e-discovery a central factor in cases of all sizes and types, not just class action and complex litigation.
Litigators who don’t properly handle e-discovery face a protracted and cumbersome process that’s prone to costly errors and may lead to federally imposed sanctions. Yet despite the mounting consequences of e-discovery failures, attorneys aren’t doing enough to evolve their e-discovery practices. Today’s law departments need to adopt a proactive approach to e-discovery. Having strong e-discovery strategies doesn’t just enable litigators to fulfill information requests – it also provides them with a window into information that can be extremely useful to the outcome of a case.
The legal industry’s ESI problem largely stems from a lack of attorney engagement with e-discovery procedures. In a recent Exterro study of judges and attorneys, nearly two-thirds of respondents agreed that attorneys aren’t equipped with the knowledge to meet client e-discovery needs. When it came to explaining this knowledge gap, however, judges and attorneys differ on the root cause. While most judges trace the problem to a lack of cooperation between parties, the majority of attorneys point to a different issue: Lawyers not only lack experience with e-discovery – they’re also reluctant to learn about it.
One reason litigators avoid learning about e-discovery is because they don’t see it as a priority relative to other work tasks. But a look at e-discovery case opinions illustrates the steep consequences of this attitude. Back in August, for instance, Delta Air Lines was ordered to pay $2.7 million in discovery violations on top of the $4.5 million it had already paid. The $7.5 million judgment largely stemmed from Delta general counsel’s failure to meet basic e-discovery standards like preserving data and backup tapes.
Delta’s legal team isn’t the only one to struggle with data retention. As a Duke Law Journal report on sanctions for e-discovery violations revealed, failure to retain ESI is the most common reason for sanctions. Data retention is a prerequisite for sound e-discovery practice. The fact that many litigators don’t meet this basic standard points to the need for better awareness about e-discovery and its benefits.
Robust e-discovery isn’t just about achieving baseline standards like data preservation. Increasingly, strong e-discovery is becoming necessary for litigators who want to maintain a competitive edge on the global stage. There’s an international push for better e-discovery standards, with nations from Canada to Singapore and Japan to Italy implementing e-discovery guidelines. This global focus on refining e-discovery is heightening the standard for attorney handling of ESI.
Here in the U.S., the recently-amended Federal Rules of Civil Procedure gives firms another reason to prioritize e-discovery solutions. The amended rules – which went into effect last December – raised standards for ESI preservation and discovery, and increased the consequences for noncompliance. Under the updated rules, there is an expectation that litigators will do what they can to ensure the e-discovery process is efficient, and make a reasonable effort to preserve ESI. The amended rules make it hard for a litigator to claim ignorance if he or she doesn’t follow proper e-discovery procedures. In March, for instance, a judge brought e-discovery-related sanctions against a plaintiff as a direct result of the FRCP amendments.
In addition to solidifying compliance and a competitive edge, comprehensive e-discovery can provide litigators with an abundance of actionable case data that might not otherwise be uncovered. Information from social media posts, emails, Excel spreadsheets and other digital sources can help attorneys build a better case – but only if it’s effectively reviewed and refined. And with the mounting use of data-generating Internet of Things technology, attorneys will only have a greater need to retain, analyze and use digital information moving forward.
Despite the clear need for effective e-discovery, many firms continue to rely on outmoded methods, such as paying hourly paralegals to conduct manual reviews of case-related ESI. This cumbersome approach turns e-discovery into a long, expensive and error-prone process. By using a comprehensive e-discovery platform, litigators can significantly expedite the discovery process while saving money and increasing accuracy and actionable findings. In order to do that, however, firms should align themselves with the right solutions provider. Here’s what firms should look for in an e-discovery solution:
By recognizing the importance of e-discovery and adopting solutions that help streamline the process, attorneys can be ahead of the pack as digital information moves to the center stage of the discovery process.
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