James D. Barger, J.D.


Aylstock, Witkin, Kreis & Overholtz, PLLC


Electronic exchange of data and documents in litigation discovery

The civil litigation process in the United States includes a phase called "discovery," in which the parties are required to exchange information and documents to narrow the issues, reveal facts, and prepare for trial. The modern practice has transformed much of this from a largely paper-based exchange to an equivalent electronic exchange of documents, e-mail, financial data, and countless other pieces of information stored in electronic form.

This "electronic discovery," or "e-Discovery," as it is commonly known, has made discovery an even more enormous and significant litigation phase. Often, the court's ruling on e-discovery issues forces one or both parties to move closer to settling the case to avoid a length and expensive ordeal. Of course, the primary goal of e-discovery is to facilitate an open exchange of facts prior to trial to prevent surprise moves at trial that catch opposing parties unprepared to respond appropriately. Our civil justice system is based on law and facts, and cases should not be determined by who uses the most novel and surprising tactics.

Stop that smoking Gun! The latest in eDiscovery and Data Loss Prevention
(Nov. 13, 2013. Garage Series, New Orleans).

e-Discovery has added a whole new layer of complexity to the discovery, incorporating technology as an integral part of the process. Many attorneys and judges struggle to understand the underlying technical issues of relational database management systems and internet protocols, etc.

For example, the court and the litigants might be faced with whether, and how, to require a litigant to hand over a working copy of an interactive website application that has been taken off-line and archived.

Should the party be required to dig up all the hundreds or thousands of files that made up the website or web application? How much of the cost should each party bear? What is a reasonable expense when hiring experts to do the technical work? What format is acceptable? Can the party merely hand over PDF copies of screen shots of the site? If it was interactive, how will the other party be able to demonstrate to a jury (or see for themselves) what that application was doing and what information it was giving out? If required to re-construct the web application to restore the fully interactive nature, how much will that cost? Is that reasonable? How will that be done? Where will the site be securely hosted?

DEF CON 16 - John "Jur1st" Benson: When Lawyers Attack! Dealing with the New Rules of Electronic Discovery. (Published on Nov 25, 2013.)

These are all fair and common questions in modern e-Discovery. And that is just part of one relatively simple scenario. The field is ever-evolving and growing.

Many experts would also include issues of advanced document review as part of the e-Discovery world. This sub-field is constantly changing as well. The technoology that handles millions upon millions of documents in a single litigation must be highly efficient and reliable. And, it should also be able to identify duplicate documents and near-duplicates, to make review more efficient.

Modern solutions also have features that can apply advanced heuristics and algorithms, such as Predictive Coding or Technology-Assisted Review, to do some of the analysis that humans had to do on their own in the past. These systems can greatly streamline the identification of useful or relevant documents, paring down hundreds of millions of pages to perhaps only a few hundred thousand that human attorneys must read and review.

Brian Smith - EMC World 2013 - theCUBE

The increasing power of technology seems to fuel increasingly large document productions. To keep up, the technology evolves further. Today's systems employ the most powerful relational database systems from Oracle and Microsoft for structured data and ultra-scalable open-source systems like Hadoop for unstructured data collections.

Many attorneys do not understand the difference between structured, unstructured, and semi-structured data and do not know how to evaluate the effectiveness or appropriateness of the various technology solutions available from legal service vendors. These issues require a deep understanding of how database systems work and how data is moved across networks and presented to users. This has led to a new type of attorney who is both a technologist and a lawyer.