Lawyers Deem Digital Discovery Fuzzy Field

Think twice before clicking the button that sends a heated e-mail into cyberspace. A copy of the e-mail, of course, remains in your computer and also ends up on someone else’s.

The documents in your computer, or your recipient’s, are open to litigation if you or they become involved in a lawsuit.

“Don’t write anything in an e-mail that you wouldn’t want to see on the front page of The New York Times,” is what John Elrod, managing partner at Conner & Winters’ Fayetteville office, tells clients.

Recently, an incriminating e-mail trail helped snare former Washington lobbyist Jack Abramoff. E-mail indicated he had been taking kickbacks. Abramoff’s e-mail was obtained by investigators using discovery.

Discovery is the disclosure of documents relevant to a suit by opposing lawyers. Lawyers can request that the opposing side supply information that may be used to prove or disprove a point in the suit. It used to be for printed documents. But for the last several years, the process also includes “electronic discovery” or discovery of relevant documents on a computer’s hard drive — frequently including e-mail.

E-discovery, as it’s commonly called, used to be an afterthought or a special separate request along with a request for paper documents. But area lawyers said e-discovery has become a “matter of course” in the last two years.

Lawyers said that even after a full decade of heavy e-mail and personal computer usage in the workplace, the courts struggle with reasonable and productive guidelines involving electronic discovery.

So far, e-discovery isn’t much different than regular discovery, and guidelines involving “electronic” are ad hoc, or on a case-by-case basis, they said.

“It makes sense,” said Tom Kieklak, partner with Harrington Miller Neihouse & Kieklak in Springdale. “We don’t write memos any more, we write e-mails.”

Kieklak said, as most people already know, easy access to e-mail produces more written correspondence than paper memos, the one-time communications stalwart of the business world.

And haste can waste a career.

In 2003, Arkansas Business reported that Bud Harper, former director of the Arkansas Department of Emergency Management in Little Rock, sent an “inappropriate” joke via e-mail to employees. The joke, which was a facetious prayer that included references to illegal aliens and welfare recipients, made the rounds and ended up on a radio talk show. Harper resigned.

He could have denied that he sent the joke, but e-discovery would probably have rooted him out.

Stephen Wood is a lawyer in Rogers whose practice is primarily focused on employment law. Wood, who was interviewed via e-mail, said he couldn’t put a figure on a percentage increase on e-discovery in his practice, “but I can tell you that just about every case I have these days involves it to some extent. I think e-discovery has reached the point that it is almost malpractice for any lawyer not to consider it in just about any case — even divorces,” he writes. “It is that ubiquitous.”

But electronic discovery issues and the law are dynamic and ever changing, several lawyers said.

“The law is developing really fast,” said Kieklak. Area lawyers — himself included — and judges are still educating themselves on all the particulars involving electronic files. Kieklak has attended six phone seminars on the topic in the last three years, he said.

A law think-tank and continuing education company, The Sedona Conference in Sedona, Ariz., has developed a set of 14 guidelines called the “Sedona Principles Addressing Electronic Document Production.” The principles seek to provide reasonable usage in discovery, but lawyers and judges aren’t bound to abide by them.

To date, the Arkansas Supreme Court has not made a specific ruling on e-discovery, so Arkansas lawyers are bound by the Federal Rule of Civil Procedure, No. 26.

E-burden

But the issue about e-discovery seems to be less about what’s fair than it is about who foots the bill.

“You can imagine how much time it takes to search through all the e-mails of a company official for the last three or four years,” said Christopher Lawson, a partner with Friday Eldredge & Clark’s Fayetteville office.

As it is, Lawson said he can easily spend as much as 30 percent to 40 percent of his time wrapped up in e-discovery, depending on his caseload.

Sifting through back-up tapes searching for relevant, “discoverable” e-mails and documents can add up quickly, Lawson said. A bill for a large commercial case could easily ratchet up into the “hundreds of thousands of dollars,” he said.

The financial burden is usually put on the party required to produce the documents, though not always. If e-discovery becomes an undue burden or an undue expense for the expected results, the court will often even out the price between plaintiff and defendant.

The irony is, technology is designed to save time and money, but right now e-discovery can throw a monkey wrench in the works and slow down the discovery process, Lawson said.

The process could be used as a weapon. One side of a lawsuit could deliberately request so much data that the other side gets bogged down in searching and supplying the information.

But Lawson hasn’t seen such backhanded tactics in Northwest Arkansas. He said the law community in this area is fairly friendly and for the most part, no one wants to waste anyone else’s time.

Data on Data

Kieklak points out an interesting phenomenon about electronic documents that plays into e-discovery — metadata.

Metadata, or data about data, are fields that can show the history, tracking, management, file location and even authorship of a document. Often metadata is “invisible” to the novice computer user.

Data about data can put content in context and show how it relates to the lawsuit. Theoretically, it can show if someone opened and copied a document when they say they didn’t.

So far, metadata falls under the regular rules of e-discovery.

Jeremy Webb, co-owner of IfWorld Inc. in Fayetteville, said the amount, quantity and quality of metadata can vary from software program to software program, and that some people already know how to “trick” the data by changing dates on their computers or otherwise alter the fields.

And just because a file is “deleted,” doesn’t mean it’s gone.

Deleted data has to be overwritten with new data, so there’s no guarantee what you’ve just put on the disc overwrote what you wanted to delete, Webb said.

A forensic accountant once told Elrod, the Conner & Winters partner, that the only way to eliminate all the data on a hard drive was to take the disc out of the computer, and smash it with a sledgehammer.

“Yeah, pretty much,” said Webb.

(For more on this, see Companies Should Employ E-mail Policies.)