Idealistic musings about eDiscovery
eDiscovery: It Can’t Happen To You
October 5, 2011Posted by on
Yeah, I know. You think it will never happen to you.
You just go along about your merry way, litigating the way you’ve always done it. It hasn’t happened to you yet, after all.
Oh, you’ve heard about the cases, the tens of thousands of dollars in fines, the adverse inference sanctions that led to verdicts in the millions and even the billions. You’ve heard about Zubulake and Morgan Stanley and Creative Pipe and that ridiculous Qualcomm case (those attorneys did get to keep their law licenses after all, didn’t they?). You know those cases have absolutely nothing to do with you.
You practice mostly in state court. All those Federal Rules amendments, they apply to the other guys, the ones who spend all their time in motion practice. You’re a litigator, darn it. You don’t push paper, you get out there and work for a living. So it’s not going to happen to you.
Maybe you heard – maybe you didn’t – that the Texas Supreme Court pretty much adopted the growing case law governing electronically-stored information in federal courts to govern eDiscovery in Texas. In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009) is the citation. But what difference does that make? It’s not going to affect you.
Or … is it?
You’ve certainly heard the dire warnings, from people like – well, like me. eDiscovery is here to stay, whether you like it or not. Eighty percent of a company’s data, and about 91 percent of all information created today, is in electronic format. The “smoking gun” that you’re going to be looking for, or that the other side is going to try to hide from you, is probably going be in an electronic file. Those who do not learn to surf the information wave are likely to be swamped by it.
You may have noted that criminal law cases, family law battles, employment discrimination matters, workers’ comp fights, wrongful death suits, and even the good ol’ slip-and-falls are beginning to turn on who sent which e-mail to whom, or what file got downloaded to which computer and when. But that’s those guys, you keep telling yourself. You simply don’t need to learn anything about eDiscovery. It can’t happen to you.
I thought “it” couldn’t happen to me, either. Get in a car accident? Me? No way! But I still fasten the seat belt every time I get into my car, because there’s not a victim in the world who thought it would happen to him. My father does the same thing. Every time he gets into his car, he fastens his seat belt.
A few years ago, that seatbelt saved him from certain death. It wasn’t his fault, it was the oncoming driver swerving into his lane. It couldn’t happen to him.
Except … it did.
How can I analogize my father’s brush with destiny to your refusal to learn anything about eDiscovery? I can do so because, even though it couldn’t happen to him, his preparation saved him when the unfathomable did happen. His injuries, thankfully, ended up being relatively minor.
You don’t have to become a computer expert to learn a little bit about eDiscovery. Heck, you survived college, three years of law school and six weeks of bar review. You can spend a little quality time on the Internet and learn a thing or two about eDiscovery. (You can use Google, right?) Guess what? Those web pages you’re surfing get cached on your computer’s hard drive, and might be discoverable as evidence. That’s eDiscovery.
Guess what else? If your client wants to pursue a claim against her employer, and writes you a privileged e-mail from her work computer, there’s a lot of disagreement over whether using company assets to send her personal e-mail waives her expectation of privacy, and therefore, your privilege. That’s eDiscovery, too.
Starting to hit a bit closer to home, is it?
eDiscovery is not just for the federal court practice lawyers. It’s not just for in-house counsel who have to manage their enterprise’s data flood. It’s not just for the big players, and it’s not just for the big-firm attorneys. eDiscovery affects every lawyer who litigates, and a lot of the ones who don’t. Knowing how to use it effectively to support your case can be a tremendous advantage. Not knowing how to comply with opposing counsel’s eDiscovery request can make you the next sanctions case that everyone seems to be talking about.
Still think it will never happen to you?
Can you afford to be wrong about that?