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September 15, 2017
How much do you know about digital evidence and e-discovery?

By Christine Bilbrey
Practice Management Advisor

PRILegal discovery in the past was straightforward. Each side would go through the request for production process and then send out, or await the delivery of, banker’s boxes filled with documents for paralegals and law clerks to sort and tag. Most target sources of discovery came in hard copy form or could easily be reduced to paper documents such as cell phone records and emails. We now find ourselves in the world of electronically stored information (ESI). Pertinent digital evidence may be lurking in instant messages, Facebook, or even inside a fitness app on a smart phone or watch. The Exterro white paper, Preserving and Collecting New Data Types, states that “A recent study found that 60% of merger and acquisition transactions are closed by text message. If litigation arises, then those texts have to be collected.” Just collecting the data does not guarantee that it has been preserved in a manner that will allow an attorney to present it as permissible evidence.
E-discovery is a subject many attorneys would rather avoid. It seems highly technical and potentially expensive, but the courts have made it clear that attorneys have an ethical responsibility to preserve and manage electronic data. Large firms can afford to hire a company that specializes in e-discovery and then connect that company’s experts to their own in-house IT person, but how does a solo or small firm attorney handle the identification, preservation, collection, analysis, and production of all this digital evidence? Results from the Exterro 2017 Federal Judges Survey showed that “For the third year in a row, judges do not feel the typical attorney has the required knowledge to be effectively counseling clients on e-discovery matters.”

Many law schools now have e-discovery classes so that their graduates can understand how to best leverage available technology to personally take on the challenges associated with handling relevant electronic data. The University of Florida Law School currently offers two courses on this subject. Electronic Discovery “will examine developing case law and address the practical problems and issues which arise in the preservation, collection, searching, processing, and production of electronic data” while Electronic Discovery Data Analysis and Review “will explore ‘search’ or information retrieval: the central issue in e-discovery and legal defensibility of the discovery process.” The executive director of the UF Law E-Discovery Project, William Hamilton, was our guest on the most recent Florida Bar podcast, in case you missed it. He is a nationally recognized expert in this field and made the topic quite interesting during the interview.

Even if you are well past your law school days, it is not too late for you to become educated on this subject. UF Law and many other sources offer webinars, conferences, and seminars to help attorneys learn more about e-discovery so they can begin to confidently manage their responsibility to preserve and produce digital evidence for their clients. You can wade in by reading white papers on the subject to learn some of the jargon and, at a minimum, know what questions to ask before you hire an expert or purchase e-discovery software. Some companies offer a monthly subscription plan for firms that have a higher volume of cases requiring e-discovery while others allow you to pay per matter. Ask your peers what they are doing, and as always, check out The Florida Bar Member Benefits page to see what discounts are available to you.

Christine Bilbrey is a practice management advisor at The Florida Bar’s Practice Resource Institute. She holds a bachelor’s degree in legal administration and a master’s degree in business administration. She previously served as the principal firm administrator at area law firms in her hometown of Pensacola. Prior to joining the Bar, she was a certified HR classroom and virtual trainer for the world’s largest credit union. She can be reached at [email protected].

[Revised: 12-13-2017]