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Except for a few scraps of handwritten notes on yellow stickies, evidence these days is mostly electronic. For trial lawyers, this means that the discovery phase of litigation has gone electric. This summer, Peter Weinstein, an associate in the San Diego office of San Francisco’s Brobeck, Phleger & Harrison, got a settlement for client Phase-1 Molecular Toxicology Inc. in a case involving the misappropriation of trade secrets. The settlement, which he says was favorable to his client, was at least partly based on the retrieval of evidence stored on the computer used by a former employee of the company. (Weinstein declines to say how much the case settled for, or what the nature of the documents was, citing the confidentiality of the settlement agreement.) Use of electronic discovery spans from the mundane to the sublime. Finding smoking guns in the form of e-mails and hidden documents played a major role in the Microsoft Corp. antitrust case, as well as in fen-phen diet drug litigation. Not every lawyer will try a Microsoft-type case in his or her lifetime. But that doesn’t mean there’s not a chance to find hidden evidence, and to prove a case with a little computer sleuthing. In electronic forensics, a technology company will sift through a hard drive to find an odd piece of evidence or recover a deleted file. In electronic discovery, a technology company will help determine what files should be handed over in the discovery process. Typically, a law firm will ship a computer hard drive or server to the electronic discovery company. The company will often create a digital image of the hard drive so it does not destroy the evidence. Once it has mined through all the data in a lab, the electronic discovery company will usually put the necessary data — e-mails, word processing documents, records of computer use — on a CD. That way, the information can be read electronically by the lawyer, too. The evidence is usually arranged and coded in searchable databases. For example, a series of databases could be searched by privileged documents. It’s possible that electronic discovery companies may actually thrive in the downturn of the economy. “One might argue that the amount of litigation goes up when the economy goes down,” says Richard Lazar, chief executive of Fios Inc., an electronic discovery company based in Portland, Ore., and himself a former litigator. Fios, which was founded in June 1999, received $10 million in venture funding in July. This is a rarity in the legal tech market these days, where pleas for venture money are falling flat. Electronic discovery companies provide a versatile set of services. They can be used to unveil the smoking guns in a major litigation. They can also be used in the due diligence process of corporate work. Fios, for example, says it is developing a niche in antitrust work. It will often work for firms that are handling due diligence to gain merger approvals, says Lazar. Michael Weaver, the chief executive officer of Applied Discovery Inc., an electronic discovery company based in Bellevue, Wash., says the company found about 4 million documents for a company seeking approval for a merger in August. In a month, he says, Applied Discovery culled the number down to 1.5 million relevant documents. New Technologies Inc. says its service is often used in labor and employment cases, particularly trade secret disputes. Electronic discovery also has a role in turning victories in smaller cases. Here’s one tale from the front lines: Computer forensics experts helped B. Matthew Catalano, an associate at five-lawyer Wright & Kidwell in Midland, Texas, get a no-fault verdict for his client, a cardiologist, in a malpractice suit in Texas state court in August. Catalano’s client was accused of malpractice when a patient he had performed an angioplasty on later died. Records on the hospital’s internal computer system usually store images revealing the nature of the surgery and the procedure itself. In this case, those images were missing. Catalano called in experts from New Technologies, who came to west Texas to image the hospital’s hard drive and capture the hospital’s internal records. They determined that the records had never been stored on the hospital’s computer in the first place. Catalano said his client was accused of erasing the images from the system. (The plaintiff’s attorney, James Killion, did not return calls for comment.) At trial, Catalano and Max Wright, a partner in the firm, argued that their client did not erase the images. The images of the angioplasty surgery never appeared in the hospital’s computer system because of a system malfunction, they argued. A jury found the doctor, who was being sued for $1 million in damages, not guilty of negligence.

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