I’ve been to a number of e-discovery CLEs where they say something like: “The iterative process of phased custodian production encourages efficiency and cooperation between counsel.” Half the room is frantically writing that down so they can go home and Google it and the other half already knows that and they’re just there to network. So, if you are in the half that would have written that down, if you would like to improve your knowledge of e-discovery, if you are afraid of ethics opinions regarding e-discovery and have been trying to avoid it, this article is for you.

Why Do We Need This?

I’m not going to tell you that e-discovery is a huge tidal wave about to crash on your heads, but you probably have noticed an increase in data that is stored electronically as opposed to in filing cabinets. Accordingly, we have seen an increase in discovery requests for this electronically stored information. E-discovery rules are simply the rules that supplement the regular discovery rules and pertain to how to handle electronic data. We need supplemental rules because e-discovery typically involves large data sets (a million pages is not uncommon).

E-discovery involves increased costs associated with reviewing electronically stored data, procedures for gathering and preserving the integrity of that data, and rules limiting what you can and cannot ask for. Since these millions of pages of documents need to be reviewed for privilege, the chances of some documents slipping through the cracks are pretty good, so there are rules governing how we handle that as well. Electronic files can be destroyed a lot more easily than paper documents, whether intentionally or unintentionally. It’s very rare that you walk into your filing cabinet room and turn on the light switch and all of the documents in the room just disappear. So, we have rules regarding the “accidental” destruction of documents as well.

Read the full post at Above the Law.