eDiscovery for the Rest of Us?
E-discovery was once the sole concern of large law firms involved in large-scale litigation. But as EDD increasingly becomes an issue in smaller cases for smaller law firms, small and solo lawyers are learning some hard lessons about electronic evidence in litigation. Michael Barnsback, an employment and civil litigation senior associate with DiMuro Ginsberg says e-discovery is increasingly an issue for his 12-attorney firm in Alexandria, Virginia. While it is a challenge, he thinks it can sometimes benefit a small firm like his. He says there was a time when big law firms could count on bigger budgets and staff to out-muscle opposing counsel at smaller law firms. In particular, the document dump, the practice of sending as many files for review close to the start of a trial, has long been a favorite tactic for overwhelming an opponent. “It’s certainly leveled the playing field for us,” he says. “You don’t need a big team to do review. If someone dumps a truckload of boxes on you, now you can scan them, put them in a searchable format, and one person on one computer can find what you need to go into the case prepared.”
But for many small firms, the technical demands of identifying, preserving, archiving, reviewing, and producing digital evidence for trial is increasingly becoming a problem, and one they cannot avoid. “We’re seeing tremendous growth for small firm e-discovery services,” says John Simek, a computer forensics specialist with Sensei Enterprises. “Judges are expecting attorneys to take it seriously and the attorneys realize that ethically they have an obligation to consider digital sources for evidence.” Unfortunately, lawyers who haven’t been involved in major litigation involving digital documents probably haven’t had a chance to learn things that some big firms have learned the hard way. Even more, small and solo firms often have hurdles to overcome that large-scale litigators never have to think about. For example, many lawyers who have never been involved in e-discovery before may mistakenly believe that printing an e-mail might be an obvious way to produce a document. However, there is a body of law that may require litigants to preserve metadata or other digital features in a document that are lost when printing. And while large firms can typically hire professional forensic examiners, small firms trying to operate on a tight budget might be inclined to do forensic examinations themselves, which could open up a host of problems.
