Tuesday, November 27, 2007

Electronic Discovery: Notes for the Firm

Last December's revisions to the Federal Rules of Civil Procedure, addressing discovery of electronically stored information, underscored the fact that no lawyer today can afford to ignore e-discovery. No matter the case, no matter the court, digital data is likely to be implicated.

That means lawyers urgently need to understand electronic data discovery and keep abreast of developments in the field. In this month's column, the first of two parts on EDD, we look at some of the more useful Web sites for learning about and keeping current with this essential area of practice. Next month in part two, we will survey EDD blogs and look at some vendors' sites that include useful resources.

Getting Started

For all it offers DiscoveryResources.org may be the leading e-discovery portal. Even though the site's sponsored by EDD vendor Fios Inc., it forgoes commerce in deference to its mission, which is to provide news, information and resources. Through both original content and outside links, the site provides timely news stories, substantive articles, tutorials, seminars, podcasts, legal forms and other tools.

Another useful entry point to resources on e-discovery is the American Bar Association's Legal Technology Resource Center. The site devotes a section to courtroom technology and, within that, a guide to EDD resources. While not extensive, the guide is a good starting point.

If you want to know what federal judges know about e-discovery, you will find no better source than Ken Withers. In his former role as education attorney for the Federal Judicial Center, Withers taught judges about EDD and technology. Now director of judicial education for The Sedona Conference, Withers' personal site archives his many articles and presentations, discusses EDD rule making, and provides links to resources elsewhere on the Web.

California lawyer Richard Best started posting his civil discovery outlines on the Web in 1999 and has continued to update them ever since at California Civil Discovery Law. From his home page, follow the "electronic data" link for his extensive collection of resources covering state and federal e-discovery, as well as related issues such as EDD ethics.

The Electronic Evidence Information Center is a fairly modest collection of links to resources and conferences relating to e-discovery and computer forensics. Worth noting is the site's page collecting links to mobile phone forensics tools.


The rapid growth of EDD in recent years has often left the horse trailing the cart. A number of organizations are now working to develop standards and practices with the goal of harmonizing e-discovery across courts and industries.

A leader in this research is The Sedona Conference, a nonprofit organization devoted to innovation in antitrust law, complex litigation and intellectual property law. It has devoted substantial work to the establishment of best practices in e-discovery. In June 2007, it released the second edition of The Sedona Principles on e-discovery. This document and many others are available through the Sedona site.

Given its goal of enhancing the administration of justice, the National Center for State Courts is immersed in issues surrounding e-discovery in state courts. In August 2006, it published an extensive set of e-discovery guidelines for state trial courts, which is available as a download from this site. Elsewhere, the site compiles research and resources on e-discovery and houses a variety of articles on the topic.

Directed by legal technology consultant Tom O'Connor (a member of LTN's Editorial Advisory Board), the Legal Electronic Document Institute is a nonprofit organization devoted to the development of education and standards related to legal electronic documents. Its areas of focus include practice management, electronic trial practice and litigation support, e-filing, e-signatures and e-discovery. Similarly, the Electronic Discovery Institute describes itself as a public-interest organization conducting research into the efficacy of various methods of e-discovery. According to the site, the institute's inaugural study is underway, testing the reliability of search and retrieval technology. Once completed, the study will be published here.

While the foregoing entities focus on EDD practices, Socha Consulting takes a different tack with its annual Socha-Gelbmann Electronic Discovery Survey. Think of it as the Consumer Reports of EDD vendors. The survey ranks the top e-discovery companies and provides information on many others. The full survey is pricey -- $5,000 for 2007 -- but a free summary is published each August in Law Technology News. Socha's site includes various free resources as well.

From the publishers of the Socha-Gelbmann survey comes this related site, The Electronic Discovery Reference Model. The site originally was devoted to development of a model set of standards and guidelines governing EDD. With the model now in place and in the public domain, the site focuses on its deployment.

EDDix is a company devoted to research, analysis and reporting on e-discovery. The "ix" in its name stands for "information exchange." Through this site, it sells various publications containing its research and also provides links to news and resources relating to e-discovery.


A number of sites house original news stories, practice pieces, white papers, seminar presentations and other materials devoted to e-discovery.

Law.com Legal Technology, for example, maintains a useful section devoted to EDD. It features news articles and expert commentary written for the site and drawn from legal newspapers and magazines. An "E-Discovery Road Map" lets you navigate your way through steps in the EDD process and learn about requirements and best practices. (Law.com is a sibling entity to LTN.)

Readers of LTN know Craig Ball for his award-winning column here. Ball is a board-certified trial lawyer and a certified forensic examiner -- a combination that qualifies him as an EDD consultant -- and prolific writer on e-discovery and computer forensics. His Web site collects his column, with a variety of his articles and presentations.

LLRX.com has long been a superior site for articles and resources on law technology and practice. From its main page, click on "E-Discovery" in the right-hand navigation column or use the site's search feature to find a library of articles and updates covering e-discovery.

A collection of EDD materials from the Federal Judicial Center can be found by following the "materials on electronic discovery" link from its front page. The collection focuses on civil litigation and includes FJC workshop and seminar materials, research and publications, along with links to selected external materials. A link points to a separate page of materials focused on search and seizure of electronic data in criminal cases.

FindLaw's Electronic Discovery Center provides substantive articles and white papers on e-discovery along with vendor press releases. An "EDiscovery Wizard" provides checklists and links to articles regarding specific provisions of the federal rules.

Law Journal Newsletters, a division of ALM, publishes the newsletter E-Discovery Law & Strategy, which can also be reached through LTN's site. Subscribers can view the full text of articles as well as download the entire newsletter in PDF. Nonsubscribers can view article summaries and purchase individual articles.

Michael Arkfeld's book, "Electronic Discovery and Evidence," is a leading treatise. The book is available for purchase through Law Partner Publishing. Purchasers get password-access to Web-only resources available here, including updates, forms and checklists.

A unique EDD resource is the Litigation Support Vendors Association. This site is home to multiple, free discussion forums covering such topics as e-discovery, computer forensics and best practices. All are moderated by industry experts and representatives of legal-technology companies. Also posted here are jobs within the litigation support industry.

No comments: