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It is rare that evidentiary issues in litigation are of sufficient public interest to reach the mainstream press, but this is changing with the issue of electronic evidence. From a legal professional’s standpoint, the public’s interest in the smoking gun e-mails occasionally appearing on the national news should not go unnoticed. Interest in this type of evidence translates into a similar reaction when such evidence is presented to a jury. Because of this, this type of evidence is often not making it to a jury at all and is increasingly the basis for early settlements despite an often tenuous relationship to the merits of the suit. Although the natural evolution of electronic evidence and e-discovery is still in its relative infancy, the battle lines have been drawn throughout the chronology of a typical lawsuit. The main pitfalls or risks associated with electronic evidence arise at commencement of a suit, initial disclosures and at Rule 16 conference, discovery and trial. If at each of these steps of a lawsuit a practitioner or legal professional considers the unique issues related to electronic evidence, the fundamentals should be covered and novel strategic advantages may be identified. A basic understanding of document retention policies is necessary to be fully informed about the pitfalls related to the exchange of and issues related to electronic evidence. Stated simply, in this era of backup tape recycling, automated monthly deletions and delete buttons, the environment for committing spoliation by a corporation is more ripe than ever. Unlike the historical perspective whereby spoliation required an overtly intentional or at least blatantly negligent act, today, simply failing to suspend an electronic document destruction or recycling policy upon notice of a lawsuit can lead to grave, even outcome-determinative, consequences. See, e.g., Linnen v. A.H. Robbins1999 WL 462015 (Mass. Super. 1999). All legal professionals working in this area must recognize that in many jurisdictions, once a suit is commenced, or even once a reasonable expectation of litigation exists, an unchecked document retention policy that recycles or overwrites backup tapes or otherwise deletes data must be suspended or the data be copied so that it is available once discovery has begun. This issue has risen to a point where proposals to changes in the Federal Rules of Civil Procedure requiring suspension of document retention policies only upon order of the court appear likely to be offered in the future. The good news is that once all this data has been preserved, it is no longer necessary to review all the documents by hand. Just as the evidence itself is high tech, so are the various choices for reviewing it. It’s often stated that the problem with electronic evidence and computer documents is their sheer volume. At the same time, the fact that they are electronic makes them easier to review through the use of technology. An understanding of a few e-discovery industry terms is necessary. For example, vendors who process electronic evidence (copy, restore, preserve, print, etc.) often offer a feature known as “de-duplication.” Essentially, this process is a means to cull the duplicate documents. For example, an employee of a party to a lawsuit has sent an e-mail to five people within a company and they have each sent it to two or three others; an efficient de-duplication process should allow the reviewer to view only one copy while being informed as to the time, date and identity of all the other recipients. Other common features used by attorneys engaging in e-discovery include time splicing (extract and reviewing data generated only from certain time periods), user splices (pulling data generated by or mentioning only specific employees) and privilege searches (pulling all documents that hit on key terms such as general counsel, attorney, legal department, etc.). All this technology makes the reviewing of this type of evidence easier and is particularly useful for the producing party. The process is becoming simple. When a party receives a request or an order requiring the production of certain data, they can, either themselves or through an e-discovery expert, capture (image) the data at their client’s facility and have it processed and reduced to a reviewable magnitude, and satisfying their obligations even if they have little or no technical knowledge themselves. The advent of all the technology for reviewing electronic evidence and, in fact, the advent for an entire cottage industry has been spurned by an increasing recognition of the depth of information that can be discovered when data is requested from an opposing party. For example it is now recognized, despite corporate policies and stern warnings from attorneys, that many employees do not comprehend, or at least acknowledge through their actions, that e-mails are not private. Employees and employers continue to discriminate in e-mails, admit liability, make insensitive statements and discuss market strategies (e.g., Bill Gates in the Microsoft antitrust action), and generally communicate with more candor than they would — or should — communicate in paper form. Litigators love truthful damaging statements, and e-mails are a fertile area for finding them. Because of this, requests for this type of evidence should increase in the future. But e-mails and other simple active data are really only just the basic source for electronic evidence. Deleted documents thought to be destroyed by the computer user are now being exchanged in discovery. Simon Property Group v. mysimon Inc., 194 F.R.D. 639 (S.D. Ind. 2000). The simple fact that a party went to the effort of deleting a document may be significant to a jury. Further, personal computers kept at the user’s home are now open game. Superior Consultant Co. v. Baily, 2000WL 1279161 (E.D. Mich. 2000). These PCs can reveal information about the user’s practices that might not have been revealed on a business computer. Personal palm computers and even electronic voice mail systems should also be considered. In cases in which a party’s knowledge is at issue, the simple creation date of an electronic document may be more significant to the document’s content. Unlike paper evidence, an electronic document can often provide this information. All this reveals that with electronic evidence, more can be found and determined about the creator of the document than with paper evidence. Despite an apparently clear trend toward the discoverability of electronic evidence and various forms of data, substantial inconsistencies exist between jurisdictions in a variety of e-discovery issues. No presumption is safe when it comes to the scope of discoverable material — the question as to which party pays for production, a party’s obligation to preserve data or what constitutes work product when wading through the various decisions issued about e-discovery. There will often be a case somewhere related to these issues that supports your position, no matter which side of the issue you argue. Every jurisdiction must be checked, and no presumptions should be made. A prudent approach to a lawsuit that will likely involve electronic evidence requires considerations of spoliation, scope and burden of discovery; inadvertent waiver of privilege; stipulations between the parties aimed at reducing the scope of the exchange through the use of available reviewing technology; and admissibility. Significantly, these issues differ little from an exchange of paper evidence. Despite the apparent multilayers and novel issues related to e-discovery and electronic evidence, engaging in the exchange of this evidence does not require specialized knowledge related to technology. A variety of resources exist that provide guidance for understanding how data is stored and how to ask for it. Once the evidence is in hand, it can be treated and used like paper evidence. If the practitioner views the subject from a 50,000 foot view, litigation using this type of evidence is not much more different from litigation involving paper documents. J. Robert Keena is associate legal counsel at ONTRACK Data International Inc., an electronic discovery and computer forensics company based in Eden Prairie, Minn.

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