By Joyce Brafford

You have clients. They use email. They send text messages. They create documents. They take pictures. They make phone calls. They send messages on social apps. Imagine if one of your clients came to your office, and told you they were being sued. And all those personal and professional messaging systems were sources of potential evidence. How in the world would you avoid spoliation of evidence? How would you ensure you were gathering all the materials required by a request for discovery? How could you manage all the data you needed to sift through from the opposing party?

It’s a huge challenge. And as our clients create more data every day, there’s no excuse to be puzzled by e-Discovery. To that end, we’re asking Kelly Twigger of ESI Attorneys to tell How to Use e-Discovery and Win at a one-hour webinar on Nov. 29. To help us prepare for the program, Kelly is sharing answers to three essential questions anyone who needs to know more about e-Discovery should ask.

Kelly Twigger

1. Why does every lawyer need to understand e-Discovery?

Put simply, all of the evidence your clients need to prove their cases is electronic. The difference between paper and ESI (electronically stored information) is that clients used to be able to tell what was important and hand it to their attorney. They usually kept it all together or were able to find it easily. Now they can’t always find it all in all the systems that we use to create, send and receive ESI, and it has become the attorney’s job to know the right questions to ask to find out where it’s located, how to search it and how to get at the data for use in a case. It’s a very new complex and ever-evolving discovery process that we are facing. You can’t do discovery without ESI anymore and how you approach e-Discovery can make or break your case.

2. What pitfalls are most common to lawyers trying to manage e-Discovery for the first time?

The most common one I see is not knowing what you don’t know. Lawyers who don’t know or understand the value of ESI can just be willing to accept exchanged pdfs from opposing counsel or Outlook messages forwarded from their clients. Another common pitfall is failing to understand the need for a legal hold or the duty to preserve data when you reasonably anticipate litigation. Failing to do either one of those can tank your case before you even get started, and even if the facts are on your side.

3. What one piece of advice would you tell every lawyer who needs to manage e-Discovery?

Re-think your discovery process. We didn’t worry about volumes of data or having technology to handle data when we had paper, and the process was completely different. With ESI, you need to sit down at the outset of a case and think through the theories of liability and the elements of each theory and think “What facts do I need to prove this element and where are they likely to be stored?” Think about who would have said something and where they would have said it. Is it on social media? in email? Via text message or instant message on Slack? Then target your efforts to the sources that you know you need. For example, developers use Slack, not email, and they save nothing. If your litigation involves developers, look there and look fast before it disappears. Engineers write email and save everything — usually in email, but with CAD files, etc. Marketing folks are another breed. Make a list of the sources of ESI that are the most common for the kinds of cases you practice, and use that as a starting point. Ask broad questions — What other ways do you communicate electronically? Then create and implement a plan based on what you know you need and what the other side will want. That controls cost and gets both parties focused on what they need. Throw out your standard discovery requests and rewrite narrow, focused requests. That will avoid you being overwhelmed by data.

To learn more about managing e-Discovery as part of a winning strategy, join us on Nov. 29 for How to Use e-Discovery and Win. If you have any questions about this post, or the upcoming CLE, contact Joyce Brafford.