Common Misperceptions About Electronic Discovery

Vestige provides some Common Misperceptions About E-Discovery

• E-Discovery is very expensive.  Vestige has assisted attorneys and their clients to use electronic discovery in cases ranging from divorce to multi-state complex litigation.  Costs have ranged from $650 to preserve a single computer to many thousands of dollars to identify ‘persons of interest’ ultimately proven to be responsible for corporate fraud, theft, etc. It is wrong to assume that electronic discovery is always expensive.  If properly designed and executed, electronic discovery can accomplish in hours strategic objectives that traditional discovery requires weeks and months of client time to complete.

• E-Discovery is only for “big cases”.  Whether electronic discovery can assist in a matter, initially, has nothing to do with the size of a case.  Rather, electronic discovery is triggered whenever one or more ‘key players’ have used one or more electronic devices to create information or communicate with one another.  In the same way that each key player is a witness, whose testimony must be preserved and whose documents identified, so too, each electronic device used by a key player must be preserved and its contents used in the case.  The identification of the electronic devices used by the key players may present unique challenges to an attorney unfamiliar with the client’s data architecture; however, the process is not complicated and can be completed at the earliest stages of a matter. Electronic Devices are excellent sources of discoverable information no matter the size of the case.

• E-Discovery never reveals any evidence that could not have been identified by manual review.  E-Discovery is NOT a search for documents; rather it is a PROCESS by which electronic devices used by key players in the environment relative to the matter are preserved and analyzed.  Some of the information that is extracted from these devices includes the letters, memos, email, documents, etc. that were created by the key players.  Other information, however, includes computer artifacts and network analysis that can never be obtained by manual review.  Indeed, in may cases, the manner in which a computer was used by a key player — and not the documents resident on that computer — are the most important pieces of evidence.

• I have never had a case that required electronic discovery. Whether a case requires electronic discovery is the result of analysis by counsel. If counsel, however, cannot competently recognize electronic discovery issues, then counsel may not have the necessary qualifications to satisfy the Rule of Professional Conduct and Ethics.

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