The elephant in the room in the Rhode Island lead paint public nuisance trial II was that there was no e-evidence. The novel theory of public nuisance threw out statue of limitations. And back in the days when lead paint was a legal product - before the Feds banned it in the late 1970s - there was no email.
Well, now there is. And E-discovery currently represents one of the highest costs of litigation. Plus, the process, as defense attorney Joseph J. Hedrick of Dechert explained, can become the full-time job of a company's key people. Dechert also advises his global pharmaceutical and biotechnology clients to be aware when electronically communicating that these off-hand remarks could become evidence that is open to all sorts of interpretation.
Because of the role E-discovery plays in the U.S. legal system, I asked an expert on this topic to provide us with an exclusive interview. He is Benjamin Wright, an attorney and popular blogger on technology law and policy. Here is his blog http://hack-igations.blogspot.com, It covers such digital-edge topics as privacy, E-discovery, and the use of electronic records as courtroom evidence. Wright is also the author of mulitple books on information law such as "Business Law and Computer Society." He can be reached at Wagonhitch5@yahoo.com.
In this interview, Wright will address E-discovery issues - the process under which electronic records like e-mail are disclosed between adversaries in litigation. This have become a front-burner matter in tort reform.
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JG: Why are E-discovery costs so high?
BW: Legal practice has yet to compe to grips with the information age. In the information age, the records relevant to a lawsuit or controversy are superabundant.
Some lawyers view this superabundance from a narrow cost perspective and try to resist by destroying the records. That's a dumb move. Ask Arthur Andersen. Smart players, on the other hand, understand that the whole litigation game has changed and seek to capitalize on the change. So, for example, I have argued that a wise enterprise is very generous in its retention of e-mail messages. Those e-mail records help the enteprise navigate through many legal and political challenges, including lawsuits, regulatory compliance and political investigations. For example, see http://hack-igations.blogspot.com/2008/04/reducing-volume-of-e-mail-archives.html.
JG: How can E-discovery costs be constrained or managed better?
BW: For an enterprise like a corporation or a government agency, the real question to ask is not how to constrain E-discovery costs. E-discovery is not an end in itself. E-discovery is just part of a lawsuit.
An enterprise can easily incur low E-discovery costs, while losing an expensive lawsuit. The real question to ask is: How can I cope with electronic records so that possible legal disputes and controversies pan out in good results for me?
A good result includes an accounting for costs like E-discovery. My reply to the question goes like this: Technology is changing the world at lightening speed. A wise enterprise can use technology pro-actively to seek good outcomes from the legal system. The enterprise, for example, can cast a burden on its potential adversary, before a lawsuit is filed, to help the enterprise understand its mistakes, if any exist, and correct them promptly so that those mistakes are small. To explain this idea I publish a video example at http://hack-igations.blogspot.com/2008/05/nix-smoking-gun-e-discovery.html.
JG: Has E-discovery become a strategy or tactic to burden opponents in a possible lawsuit?
BW: Yes, Jane, it has. Some parties have bullied their opponents into settling lawsuits early just so they can avoid the costs of E-discovery, i.e. the costs of sifting through all their e-mail records and turning copies of them over to the other side.
But such bullying is not the end of the E-discovery story. We must remember that E-discovery is a two-way street. Properly understood, E-discovery is a specific example of a more general exercise: That is, a technological investigation.
In a lawsuit, technology investigations are available to both defendant and plaintiff. Technology investigations furnish savvy litigants endless innovative options. Smart people know how to demand and look for unconventional electronic evidence that will work to their advantage. See, for example, my discussion of software source code at http://hack-igations.blogspot.com/2007/09/endless-investigations.html.
JG: What kinds of reform are possible and where will they come from? Should we look to the executive branch, courts, legislatures, and professional associations?
BW: The information age rewards intelligence and punishes bone-headed adherence to old-fashioned practices. Those enterprises that adapt creatively to the new legal environment will fare better than those that don't.
Meanwhile, the courts need to sense how the world is changing. If judges don't understand change, then sharp litigants will hoodwink judges (about such topics as which E-discovery is needed and which is not) and abuse our system of justice.
JG: Thank you so much for this insight and all the useful links. I hope you will be an ongoing source of information on E-discovery for this blog. As a niche marketer, I would say you're wagging the right long tail.
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Benjamin Wright can be reached at Wagonhitch5@yahoo and his popular blog is a must-follow for those of us searching for an advantage in using E-discovery. Wright's book "Business Law and Computer Security" doesn't seem like a beach-read but I plan to take it along to Rhode Island this Fourth of July to get a better handle on how the information age and the law are intersecting.
This whole situation is very complicated for me, I can't understand the whole situation so can you give a non-lawyer-friendly explanation ?
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