We know e-discovery is both new and not new. It is not new because it is just the discovery of evidence relevant to litigation, although the evidence has been electronically generated and stored. But it is new because this evidence is in a whole new category that we are not really sure what to do with and that our evidence laws and court rules have only started to adapt to. And litigators on the front lines — who must work with this evidence in productions, discoveries, pretrial proceedings, and as trial exhibits — often struggle to manage it with outdated rules and tools, and few precedents to follow.
For many litigators, e-discovery is a lot like being required to peel an onion: one passes through layer after layer, crying the whole time. So some litigators simply wish the whole issue would blow over. Others relegate it to “the big case,” assuming that it applies only to large-scale class actions or big fraud or product liability cases, and ignore it because they don’t have those kinds of cases in their practice.
But the reality is until our clients stop using computers to generate material that could become evidence, or until our laws change to permit us to ignore this, e-discovery is here to stay. While some businesses and individuals have not moved to computer-based record-keeping systems, this is the exception, not the rule. The emerging e-discovery case law bears this out: personal injury, labour, criminal, and family law matters are resulting in leading jurisprudence on the admissibility of evidence from social networking sites, and many decisions regarding production of electronic records emerge from disputes where the amount at issue is modest.
I recently read a statistic that the world creates an additional five exabytes of data every 48 hours. Five exabytes is the equivalent of 37 times the amount of information in the Library of Congress. While a significant portion of this data is downloaded episodes of Glee or Lady Gaga videos, some proportion of that five exabytes, however small, could be the evidence required to prove your client’s case.
As litigators, we ignore relevant evidence at our peril. The challenge of e-discovery is to identify all relevant information and obtain it in a forensically sound format so it can be used as evidence at trial. Understood this way, e-discovery is best understood as a branch of evidence law rather than a question of procedure.
E-discovery obligations require new knowledge and skill sets for practitioners. I distinguish three discrete but related components: e-discovery law, e-discovery procedure, and e-discovery operations.
E-discovery law entails the knowledge of and ability to apply the emerging statute and case law regarding the client’s obligations to preserve and disclose information created in electronic formats. This can become a highly specialized area, particularly where electronic data from more than one jurisdiction is involved. In addition to fully understanding civil procedure and evidence law, a practising e-discovery lawyer requires comprehensive knowledge of privacy law, access to information regimes, and private and public international law.
Many jurisdictions are introducing procedural responses to electronically stored information to manage how this is presented in court. Some jurisdictions, most notably Ontario but also British Columbia, have introduced meet-and-confer conferences requiring or permitting counsel to discuss how and what to produce prior to discovery. Other jurisdictions, such as Alberta, have formalized electronic production into practice directions. These and related initiatives (including the Sedona Canada principles) are components of e-discovery procedure.
The third component, e-discovery operations, is a knowledge area mainly serviced by external technologists and vendors, but it is increasingly being insourced by firms and companies. Operators have developed processes for converting paper to electronic formats, and are also responsible for processing electronic data into formats that can be loaded into a document-review tool.
E-discovery is rapidly growing as a discrete business sector, with many new vendors and technology offerings that permit the rapid review and analysis of data. Increasingly, review technologies are becoming adaptable and affordable.
However, what is missing are evidence acts retooled to acknowledge that electronic evidence is dissimilar to much of the physical and testimonial evidence existing laws are designed for. For example, is the string below a forwarded e-mail “hearsay?” How does one authenticate a Wikipedia page that has multiple authors, or consider the evidence of a Facebook page without treating the database beneath it? Some of this law will develop incrementally, however, evidence acts need to be redrafted with 21st-century technologies in mind.
Similarly, there is no suite of standardized production formats, so data is exchanged according to a series of formats, some of which are incompatible. Since all litigation contemplates the exchange of evidence between parties, there is a strong case to be made that a certain standardization of export formats would benefit everyone.
What is certain is that the use of computers and other information-generating and -processing devices will transform the way litigators practise. It already is — often in disruptive ways. What is open to question is how the transformation will happen and what it will mean to lawyers.
Dera J. Nevin is the senior director, litigation support, and e-discovery counsel at McCarthy Tétrault LLP. A practising lawyer, she oversees the firm’s e-discovery operations and can be reached at [email protected]. Her column on technology and litigation will appear every second issue.