eDiscovery for the Young Lawyer

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By David Arpino

In my short tenure as a young lawyer, I have quickly learned that in the context of litigation, the word "discovery" will soon be replaced by "eDiscovery." In fact, we might already be there. eDiscovery is the disclosure of electronically stored information or "ESI." In the context of litigation, ESI includes (i) word processing documents; (ii) digital photos; (iii) videos; (iv) emails and attachments; (v) texts and instant messages; (vi) mobile devices; (vii) social media; and (viii) any metadata contained in it. (ANNA TAGVORYAN, JOSHUA BRIONES & BROWNING E. MAREAN, E-DISCOVERY IN THE US: OVERVIEW, available at WestlawEdge Practical Law Litigation).

Think about the methods of communication in your daily lives. Do you write a letter, place it in a postage paid envelope, and mail it to the recipient? Probably not. Even those who still write traditional letters will often find themselves scanning the letter and sending it to the recipient as an email attachment. Text messaging has become the dominant method of communication over phone calls or voicemails. There is relevant data everywhere. A case can be won or lost on a single email buried in an avalanche of communications that people and businesses make every day. We have likely reached a point where manual discovery (i.e., printing emails or text messages to disclose in hard paper format) is no longer the preferred method of discovery.

What can we conclude from this discussion? eDiscovery has become the dominant form of disclosure in litigation matters. And eDiscovery touches almost every litigation practice area. For instance, recently in the personal injury field, a New York appellate court held that a defendant may use a third-party vendor to perform "data mining" of a plaintiff's devices, email accounts, and social media accounts for discoverable information. See Vasquez-Santos v. Mathew, 168 A.3d 587, 588 (N.Y. App. Div. 2019). Text messages may be relevant in family court proceedings. District Attorneys, routinely use, among other things, video, GPS data, and cellular data, as evidence to prosecute criminal cases. Also, breach of contract cases or landlord tenant disputes likely have at least hundreds of pages of discoverable ESI.

Technology Gives Lawyers an Advantage

As young lawyers, we have grown up with technology. Most of us have had a cell phone since we were teenagers. We do not know of a world where the internet did not exist. We know how to convert a word document to a PDF and we *should* know how to encrypt an email. We are comfortable with technology. This gives us an inherent advantage when managing ESI in the litigation context. If you represent a personal injury client, you can explain, and possibly even demonstrate, the steps the client needs to take to preserve social media data. Do you know what a .pst file in Outlook is? Maybe not, but with the help of Google, you can get up to speed after reading a few articles or blog posts. This is an inherit advantage we have over the lawyer who is unable or refuses to learn and adopt new technologies.

A Real Case in Practice

By way of background, I work in a small family-owned general practice law firm, which is often involved in litigation. Recently, I was assigned a litigation matter to be handled independently. For the sake of privacy, the names of the parties and the dispute between them are fictitious. In any event, the facts are still based on a real litigation.

Patty Plaintiff provided website design and content services to Danny Defendant. Patty agreed to build a custom website and provide blog content for Danny in exchange for the agreed sum of $30,000. The parties had a great relationship for around six months. The parties often communicated through emails and text messages. Over the six-month period, the parties communicated almost daily; often many times per day. When the project was nearing its completion, Danny was unhappy with the website design and refused to pay Patty for the website. Patty, upset that she was not being paid, refused to work on the project any further. As I am sure you can guess, this dispute ended up in state court. I represented Patty Plaintiff in a breach of contract action against Danny Defendant. My adversary was a solo practitioner with 30 years of experience.

The Court held a preliminary conference, and a discovery schedule was set. It was time to make a production of documents in response to a demand from Danny's lawyer. At the time, Danny's lawyer likely did not realize what he had gotten himself into. His document demand was broad and included ESI. That said, even with 30 years of experience, he had not litigated a case with significant ESI before.

Next, I consulted with Patty and asked a couple of questions. Did she have a document retention policy? Surprisingly she did. But her policy was to retain every email indefinitely because she was frightened to lose an important business record or communication. As a lawyer, this is an eDiscovery nightmare. Patty's email account contained 42,000 emails in her inbox alone. That did not include documents in her "sent" folder or any attachments. If Patty had consulted an attorney regarding implemented an ESI retention policy, a competent lawyer would have counseled Patty on developing an appropriate policy, but that is outside the scope of this submission.

I asked Patty if she knew how to download her .pst file in Outlook. (Note: a .pst file is an Outlook Data File that contains your messages and other Outlook items and is saved on your computer). Patty, like most clients, had never heard of a .pst file before. With Patty's permission, I retained a third-party eDiscovery vendor that could extract the data from Patty's email account.

With that third-party vendor's assistance, I started reviewing documents. Patty's email account contained 42,483 "files" and 101,070 "pages" of data. Based on the size of this review, I called Danny's attorney to discuss the method for production of documents. In cases with a bunch of ESI, it is a good practice to draft a stipulation with the other side to discuss case management obstacles including issues related to ESI. But here, there was an imbalance of knowledge and experience between the attorneys over eDiscovery. Danny's lawyer was inexperienced when it came to things like keyword searches, tagging documents, and metadata.

I reminded my adversary that I too demanded relevant emails and other ESI in possession by the defendants. My impression from our conversation was that Danny's lawyer was not prepared to make a production of ESI because of a lack of experience with eDiscovery and technology.

A few weeks later, after wrapping up my review of the ESI, I served the first set of documents to Danny's lawyer. I served the production through a cloud provider that contained a zip drive of over 3,000 documents, images, videos, emails, attachments, and photographs responsive to his demand. Not surprisingly, I received a phone call a short time later offering to settle the litigation. I can only speculate, but I presume that the inexperience of opposing counsel with eDiscovery played a significant role in receiving a generous settlement offer early in the litigation process.

In Closing

The moral of the story here is that as young lawyers, we can use technology to achieve superior results for our clients. We are already wired with the tools necessary to tackle eDiscovery and ESI because we have never known a world where technology has not touched our lives daily.

David Arpino is an associate at the family owned law firm Arnold A. Arpino & Associates, P.C. in Hauppauge, NY. David Focuses his practice on managing simple to moderately complex litigation across a wide range of practice areas including commercial disputes, commercial collections, and misdemeanor criminal defense.

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This page contains a single entry by Mansi Parikh published on October 2, 2019 12:00 AM.

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