Much of today's electronic information is created and communicated in an unguarded and unprotected fashion and widely distributed with a vague awareness of the potential consequences. Before the current ESI era, an important business memo or report would likely be highly edited, reviewed by counsel, distributed to a discrete number of individuals, and stored in secure files. Today that same information may be stored electronically in dozens of locations and in a variety of forms with electronic "markers" or riders, called metadata, that secretly contain information about the date and time the document was created, modified, and transmitted, and who created, modified, and received it.  

Finding the proverbial "smoking gun" has never been easier than in today's digital world.  Key documents are often stored in multiple locations making a systematic and thorough deletion or erasure of such digital data almost impossible. More to the point, vast amounts of data can be effectively searched provided the right tools are matched to the search project.  Lawyers who understand the digital world and the body of procedural, substantive, and professional conduct law that governs discovery and admissibility of ESI better control their own destiny and that of their clients. Those who do not have such knowledge risk substantial downside for their clients, their firms, and themselves. At a minimum, lawyers unfamiliar with the digital-legal arena are dependent on more knowledgeable lawyers or experts as they navigate this area of the law. Such experts may be lawyers and IT personnel in their own firm or they may be IT personnel, consultants, and/or lawyers retained or associated in matters to provide the needed expertise. However, retaining an e-discovery expert is not a simple chore: experts can be expensive and vetting the right expert for the case demands a significant amount up front research and knowledge to understand who to hire for help.

The good news is that while understanding electronic discovery and the admissibility of ESI requires effort and diligence, it is not beyond the keen of everyday practitioners.  ESI may be the new "information container," but the principles governing e-discovery and the admissibility of ESI are based largely on existing law that every litigator  should already know.  With commitment, every lawyer can learn enough about electronic information and evidence to identify e-discovery issues and address them competently, whether during document drafting and transmittal or during contested proceedings where such documents are at issue.  However, because of the ubiquity of computers and digital media, a basic understanding of electronic discovery is not an option for litigation, business, family law, and government attorneys: it is required to practice competently.

Learn About the Digital World

Here is an outline of a process to learn about electronic discovery along with some caveats and warnings regarding pitfalls that can lead to legal malpractice claims. First, lawyers must obtain some basic technical knowledge of digital systems and equipment and learn a new vocabulary sufficient to accurately discuss e-discovery issues with clients, IT personnel, opposing counsel, other attorneys and the court.  Understanding digital systems and equipment includes a basic understanding of how digital devices create, store and transmit digital information and how these digital devices are bundled and tied together to create public and private networks, including the Internet. For example, an understanding of email would include how electronic messages are created, stored, modified, and transmitted.  Different email software applications appear to operate similarly on the surface, but in fact may have very different and important features. Email within a business network will be transmitted directly to recipients within the system.  Emails sent to different companies or domains travel over public Internet.  Discovery of email often requires that a search be conducted of the server(s) in which the emails reside.  All locations of the "same" relevant email must be identified, and then after identification they must be preserved. Email systems can be designed in numerous ways, and it is difficult to make any statement concerning a "typical" email system. Most email systems are configured to routinely archive or delete messages. Individual "custodians" may have personalized storage and deletion practices that must be uncovered.  In litigation, counsel must understand the client's computer system, and the computer systems of the opposing party, to conduct and to comply with discovery. Beyond pure discovery ramifications, every lawyer must have a sufficient understanding of email to safely protect client confidentiality and privileges while communicating with others.

How does one become a wise denizen of the digital world?  E-discovery lawyers are not born. They are created from diligent effort.  But the effort must be properly directed. There is a great deal of information out there.  Maintaining an efficient learning track can be challenging. As with any significant learning challenge, systematic learning is best. Obtain reliable resources and establish a plan of learning that suits your schedule, ability, and practice area.  Frequently, reliable resources that cover electronic discovery also include ancillary information about digital equipment, software, and systems so that the application of the rule of law to ESI may be understood and applied in practice. See Artigliere & Hamilton, LexisNexis Practice Guide Florida e-Discovery Law and Evidence (LexisNexis Mathew Bender 2011), Ch. 1, Understanding Electronic Evidence and its Role in Florida State Courts. Additionally, there are a number of emerging e-discovery certification and training programs. For example, the Association of Certified E-Discovery Specialists has developed a rigorous psychometric examination and training program. www.aceds.org. The Organization of Legal Professionals offers its own training and certification by distinguished practitioners. www.tholp.org. Ralph Losey's E-Discovery Team Blog offers a full curriculum of online courses. www.e-discoveryteam.com. Some of the best "best practices" and toolkits are located at The Sedona Conference website. www.thesedonaconference.org and there may be other worthy programs available beyond those mentioned here. Of course, practical training and knowledge is important. Visit the EDRM website for up-to-date information on what is happening on the vendor side of e-discovery. www.edrm.net.

Some Common E-Discovery Errors and Mistakes

Your e-discovery learning adventure will provide a number of eye-popping surprises. For example, many Microsoft Windows® operating systems preserve a record of every Internet website visited by the computer, independent of the Internet browsing history! Obviously, a full e-discovery course and curriculum are beyond this article, but below are a few tips and insights to encourage your journey.

1. Protect Confidential Communications: The protection of privileged, work product, and confidential information is an absolute priority for every attorney. Safeguarding your own communications with the client is the starting point.  If you use email or electronic communication as almost every attorney does, you must understand your email system and communications devices (smart phones, blackberries, iphones, etc.) and employ a reasonable, effective methodology to safeguard client communications.  For example, counsel should consider disabling features in email programs that anticipate the recipient's address once the attorney begins typing the recipient's name into the email address field. Such "helpful" features make it all too easy to send a privileged email to the wrong party. In the uncomfortable event that an attorney mistakenly discloses (or receives from the opponent) privileged information, it is essential to know the steps that must be taken under current rules, including new Fla. R. Civ. P. 1.285, to recover inadvertently disclosed privileged information.

2. Inform Your Clients: Educating the client on safeguarding private information and confidential communications requires knowledge and understanding of the client's systems and procedures. Remember that the client probably does not realize that electronic communications are susceptible to unintended recording, distribution, and automatic storage.  An email sent in a moment of anger lasts for an eternity. Instruct your clients on good email etiquette. Clients should also be instructed not to "copy" unnecessary parties on attorney-client communications and of the dangers of forwarding privileged communication. Privilege waiver by unnecessary distribution is a constant threat.
 
3. Deletion is often a fiction: For any electronic document, be it email, word processing document, or other types of ESI, simply "deleting" the file or document does not remove it from the computers and servers that processed the document.  In fact, deletion does not even remove the document from the computer on which the "delete" was attempted. In almost all cases, "hitting" delete button on a computer or smart phone simply renames or reassigns the document in a way that it  retrievable only through forensic effort.  However, it is likely that the "deleted" document is still accessible, along with metadata that tells among other things how and when the deletion was attempted and by whom, who created the document, and who received it and when.  It is easy to see that a client or attorney can intentionally or innocently scuttle a case through lack of understanding digital equipment, software, and systems.

Conclusion

The question is not whether to learn about e-discovery and ESI.  The only question is how to go about it. One hour CLE programs on e-discovery and brief articles like this one are only introductions. Learning about ESI requires an assessment of your current knowledge of the area, development of a goal on level of competence you wish to achieve, and a systematic effort to learn what you don't know and need to know. The good news is that it is doable.  Start today.  ©2011 Ralph Artigliere and Bill Hamilton

Ralph Artigliere is a retired Circuit Judge who teaches e-Discovery and Evidence in the Florida Judicial College and the Florida College of Advanced Judicial Studies.

William Hamilton is a partner in Quarles & Brady, LLP and is Florida Bar Board Certified in Business Litigation and Intellectual Property Law. Mr. Hamilton teaches e-discovery and electronic evidence at the University of Florida Levin College of Law and the Florida College of Advanced Judicial Studies.  Mr. Hamilton is the Chairman of the Advisory Board of the Association of Certified E-Discovery Specialists ("ACEDS").

Mr. Artigliere and Mr. Hamilton are co-authors of the LexisNexis Practice Guide Florida e-Discovery Law and Evidence (LexisNexis Mathew Bender 2011) available from LexisNexis or from The Florida Bar.

A FUTURE ISSUE OF THE ADVISOR WILL FEATURE AN ARTICLE REGARDING J-M MANUFACTURING COMPANY, INC. V. MCDERMOTT, WILL & EMERY.  MCDERMOTT IS THE FIRST LEGAL MALPRACTICE CLAIM FILED CONCERNING THE OUTSOURCING OF E-DISCOVERY WORK.