Discovery Resources

In 2000, after the Y2K scare passed and computers did not crash – although telecom and IT did – Fios started to define electronic evidence with the small group of lawyers, technologists and government people (yes, Ken Withers, that is you). There were four major companies in the electronic evidence space, including Fios.

Technology

Dial-up was still the norm for Internet connections, with T1 lines for corporations. Not everybody had BlackBerrys. Forensics was still done in DOS, mostly by ex-law enforcement. All but a few attorneys ignored electronic evidence and agreed not to produce it, or produced it by printing it out and hand-stamping a BATES number on it. Most electronic discovery was of the forensics variety for employment, white collar and trade secret cases. PCs were left open, so internal hard drives could be attached more easily.

 

When introduced, corporate-grade external hard drives were $1,500 for 150 GB and consisted of two drives strapped together. Now, many cases can fit on a USB thumb drive or SD card. A decent-size forensics collection required the shipping of a trunk full of equipment. Now, little itty bitty computers can pull data from the most gargantuan servers. Broadband was just beginning to jump to the mainstream. Today, we are pushing the envelope of Web 2.0. We have Droids, iPhones, Twitter, Facebook and LinkedIn. For e-discovery, we have conceptual search and much more user-friendly forensics. And, according to the New York Times, Americans consumed, on average, 34GB of data per day in 2008.

 

In this same decade, Fios started a formal collections practice, “empowered” IT departments in the use of garden-variety tools for defensible collections, and built one of the first hosted (now SaaS) platforms, Fios Prevail^®, for the large cases that required multiple reviewers in diverse locations. Today, Fios supports uploading of data through a secure web connection into a variety of platforms, we are on our second generation of conceptual search, and our data processing center is capable of culling and identifying more than 4,000 file types in a matter of hours.

 

Case law

When it comes to the early years of e-discovery, people would say there was no case law, but there was. Judge Andrew Peck’s ruling in Anti-Monopoly, Inc. v. Hasbro, Inc.,reviewed the case law where electronic evidence first raised its head. Yet attorney after attorney swore they would only exchange electronic data when there was “some case law.”

 

Enron and Eliot Spitzer changed all that. Government investigations at the federal and state level, coupled with investor lawsuits, required that huge amounts of data be saved, collected, reviewed and produced by a large number of teams spread over the entire country. On the heels of Arthur Andersen, Judge Shira Scheindlin created a clarion call with the multiple-opinion Zubulake case, complete with multi-million-dollar sanctions for not understanding and executing e-discovery obligations.

 

Suddenly, the early adopter community bloomed. Cases like Morgan Stanley and Qualcomm added fuel to the fire for rapid expansion. Then Twombly hit, with Iqbal a few years later. The case law pendulum began to swing in the opposite direction, narrowing the gate for cases to make it through motion to dismiss, based in part on e-discovery costs.

 

The judiciary has been on fire in the last decade. For a profession centered in precedent, the judiciary created new ground in a prolific, generally coherent and sometimes frightening way. Judge Collings hooked up Ken Withers of the Federal Judicial Center, Judge Rosenthal herded cats for the changes to the Federal Rules of Civil Procedure (FRCP) in 2006, Judge Waxse taught us about scrubbing spreadsheets, Judge Grimm started an e-discovery hornbook novella-style, Judge Facciola thundered into luddite faces, Judge Francis initiated cost shifting, Judge Hedges went from educating counsel to returning to counsel, Judge Major did everything she could to send attorneys to the bar (California) for discipline, Judge LaPorte sanctioned egregious behavior, Judge Farnan gave us the “move it or lose it” honor system for preservation, Judge Cooper protected the volatile RAM, Judge Shaffer gave us the Land O’Lakes smooth preservation triggers and Judge Nuffer gave us the “never soon enuff” doctrine. We ended the decade with FBI raids for financial fraud, the Bear Stearns “not guilty” verdict and a cost “cramdown” for Chase by Judge Schack.

 

At the same time, Fios built one of the industry’s broadest portfolios of e-discovery technologies and services, wrote articles and hosted educational webcasts to help our clients understand and address the impact of case law and rule changes on strategy and tactics, looking for guidance from what happened behind the opinions. It’s a tradition we continue today.

 

Rules

Electronically stored information = “documents and data compilations.” It should have been obvious that word-processed documents, emails, spreadsheets, PowerPoints and PDFs were discoverable under the old rules, but it took an unprecedented effort by the judiciary, academia, non-profits, and defense and plaintiff attorneys to amend the FRCP, which became effective in December 2006. Attorneys began to pay attention, and the e-discovery bubble grew. “Safe harbor means not saving backup tapes” gave way to “It’s a lighthouse, not a harbor,” which gave way to “It’s not a safe harbor at all, keep everything.”

 

At the end of this decade, according to Tom Allman, 25 states have enacted e-discovery-specific rules. Illinois, with its cross-functional approach; Maryland, home of Judge Grimm; and California have become the state innovators now. And a new initiative to further narrow e-discovery is underway. Opinions will be heard at the May conference of the Standing Committee on Rules of Practice and Procedure at Duke University.

 

Fios continues to track and shape the thinking about new rules and their impacts.

 

Don’t sweat the small stuff

From the beginning of the decade through the last couple years, we saw e-discovery used as a weapon or in a game of “hide the ball.” FRCP 26(f) codified a requirement for attorneys to “meet and confer” around the more mundane aspects of e-discovery, yet it took the magistrate judges under the banner of The Sedona Conference® to write a Cooperation Proclamation (Richard Braman, the times they are a changing).

 

Judge Grimm dotted the i’s and crossed the t’s of Judge Major’s Qualcomm decision and Judge Porter’s R & R Sails decision to resurrect 26(g) and reasonable inquiry as an inducement to cooperate in Mancia. Highly targeted requests became gold standard, and kitchen sink requests became the badge of the uninitiated.

 

Fios continues to provide the glue for collaboration and documentation for defensibility among inside and outside counsel, between IT and legal, among joint defense groups and during productions with opposition to allow our clients to litigate on the merits instead of the “discovery about discovery.”

 

Whole new job titles, practice areas and visibilities emerge

The AmLaw 100 law firms suddenly sprouted e-discovery practices, with specialized counsel emerging at the case level. This morphed into national e-discovery counsel managing across cases with the split between trial and pre-trial work more pronounced. Paralegals adopted more traditional litigation support responsibilities, litigation support added practice support, and more law firms named CIOs. Inside corporations, GCs and CIOs started talking at the urging of the down-totem-pole IT and legal folks, who were grinding out an astonishing number of e-discovery collections. Magistrate judges started writing opinions on a weekly basis and appearing on the speaker circuit, becoming e-discovery rock stars. Kevin Esposito and Laura Kibbe became corporate poster people, later to emerge in the service area, personifying the movement into service providers. The e-discovery living room, once small, was now huge, with more than 600 self-proclaimed vendors and software providers, and the revolving door between law firms, corporations and service providers still whirled around.

 

Craig Ball and Ron Hedges became special masters. Fios became the first service provider to add Corporate Technology Counsel (me) to its mix of specialists to help clients bridge that gap between law and technology.

 

e-Discovery without borders

The decade opened with international companies ignoring and being appalled at their U.S. fishing expedition e-discovery obligations. EU countries enacted blocking statutes to protect their citizens’ privacy. True, there is the e-Disclosure Information Project; Canada, Australia, Wales and England have updated their rules; the Hague Convention rolls off the tongue; and Digicel cited Sedona. But essentially, in the international context it’s like it was in the U.S. in 2000.

 

On the other hand, in a climate where legal jobs were shed faster than hair from a Chihuahua at the vet, and where crossing state lines to practice can get you disbarred, the ABA gave the ethical green light for outsourcing in foreign countries under certain conditions. And, one thing is certain, e-discovery issues on an international level will continue to evolve as we head into the next decade.

 

Education and certification

In 2000, education for e-discovery was all about forensics. Forensic exams were on those old-fashioned, really floppy, floppy disks. There were few articles and even fewer books. My book, A Process of Illumination: The Practical Guide to e-Discovery, astonished us with its acceptance, as did the faculty for our webcasts and contributors to the first e-discovery portal, DiscoveryResources.org. Carole Basri and I, and our 50 contributors, published the first and second edition of the Thomson Reuters West treatise, eDiscovery for Corporate Counsel. Jonathan Redgrave and Judge Scheindlin published a case book for law students, and Tom Allman published a comprehensive guide to e-discovery through PLI.

 

Ediscoverylaw.com gave us a beautiful database of cases (and still does), and Craig Ball started writing with his trademark humor; Bob Ambrogi combined his experience as a lawyer, journalist, media consultant and blogger to address the intersection of law, media and technology; and Ralph Losey exercised his beautiful mind, illustrating cases and calling for e-discovery education in law schools. I started blogging at a lugubrious rate after Dennis Kennedy. Nowadays, between Rob Robinson and Monica Bay’s EDD Update, we have instantaneous e-discovery news. Gabe’s Guide became a must read for the headlines alone, and Greg Bufithis became a media mogul with The Posse List at the center.

 

ILTA and a Yahoo! list have sustained the litigation support world, which is now moving into partnership (à la Mary Pat Poteet and Florinda Baldridge) with attorneys. Project management, forensic and e-discovery certification are becoming more prevalent. This is in stark contrast to the “Can you read? Can you handle lots of stress?” hiring screens that were done at the beginning of the decade. Associations like OLP, ALSP and NFPA have created a structure to support the emerging professions.

 

ABA TechShow started the legal circuit, and LegalTech (now in east and west varieties) completed it. Shows became the place to meet with peers to learn, commiserate and, let’s face it, talk a very niche language. West and PLI got into the game, as did ACI, Marcus Evans and IQPC. In 2006, even the coffee vendor at the Hilton had a taped up “we do e-discovery” sign at LegalTech New York.

 

Print media gave way to electronic, with the ubiquitous Law.com taking center stage. Even the ABA now has daily news, and the ACC has a blog.

 

Groups, standards and consensus documents

Tom Allman and Richard Braman started The Sedona Conference® working group, George Socha and Tom Gelbmann extended their survey into creating the Electronic Discovery Reference Model, the Corporate E-Discovery Forum started, The American College of Trial Lawyers surveyed the aftermath of the 2006 amendments, Ann Kershaw and Patrick Oot started quantifying costs and culling at the eDiscovery Institute, the judges proclaimed “Cooperation,” analyst groups such as Gartner and IDC began covering e-discovery as part of their regular research, and B-Discovery meetings began taking place at a watering hole near you.

 

The left side of the EDRM

In a profession dominated by words, suddenly a process flow document appeared, as if by magic, in every RFP response and in every e-discovery PowerPoint. After Fios announced the preposterous concept of “Litigation Readiness” in 2003, the rush to prepare was on. Assessments, data mapping, information policies and early case assessments were suddenly in vogue. The left side of the EDRM was king…then came the bursting of the legal bubble and the financial meltdown. Discretionary dollars disappeared, and, like magic, the right side of the EDRM (processing, analytics, review and production) started getting its fair share of attention. Since 70 percent of a case’s cost typically comes from the right-hand side, this captured immediate attention.

 

Fios has created tremendous tools for our clients to cost-effectively respond to e-discovery requests and, in this cost-conscious climate, includes them in all our engagements.

 

Main street, niche to commodity and bubbles

In 2000, pricing was a mix of per-page and per-GB models. It was niche pricing. Law firms passed the bills over to their clients. During the part of the decade that had easy money, conveniently after Zubulake, Morgan Stanley and Qualcomm, fear stoked an unsustainable bubble both in law and in e-discovery. Post-crash, pricing still is a mix of per-page and per-GB, but in a more commoditized way, with some bundles that include the hourly services, like project management and review. Fios, along with custom processing, review and production parameters, created flexible pricing models and entered into key partnerships to help clients address their e-discovery needs from a single source.

 

It’s just the beginning

After pausing to reflect on all of the progress that has been made in the world of e-discovery this past decade, I’m taking an even deeper breath and considering what is yet to come. Technology continues to advance at record speeds and case law continues to evolve at both the federal and state levels. It’s been an incredible journey and one that I’m proud to have taken with you. Here’s to even more e-discovery adventures in the decade to come.

 

---

Filed under Home Page Featured, Sound Evidence, Technology Counsel.