eDiscovery Requires Investment in Legal Software Infrastructure and Technology Skills in Lawyers

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Legal professionals are seeing growing needs to adjust to the digital age.  More firms are investing in legal technologies such as case management software, e-billing software, and document management solutions.  However, the trend may favor larger firms which have more resources to leverage technology.

Amendments to the Federal Rules of Civil Procedure now allow electronically stored information, such as spreadsheets, emails, Word documents, .PDF files, instant messages, voicemails, e-calendars, software updates, digital minutes of meetings, graphics, and data on handheld devices to be discoverable in litigation. This is known as electronic discovery.

Under Federal Rule of Civil Procedure 34, electronically stored information (ESI) is discoverable if it is “stored in any medium” from which it can be obtained “either directly or, if necessary, after translation … into a reasonably usable form.” To the extent that audio recordings are created and retained in the ordinary course of business, they may constitute discoverable ESI.

As a result, international legal providers are expanding their e-discovery services.  In June, UK-based Altlaw Litigation Support announced an upgrade to its hosting and processing environment.  The IT services firm provides backup software, virtual servers, and data storage specifically for the legal community.

Since electronic communication is now permissible in court, attorneys are placing a premium on data security, storage, and accuracy, according to John Elardo, a Phoenix-based lawyer who specializes in tort and commercial litigation where the outcome of a case can hinge on e-discovery.  Elardo has been involved in fraud litigation for most of his legal career and his cases often rely on being able to generate insightful electronic documents to advance or refute arguments in the courtroom.

Electronic discovery is requiring new demands and skills out of practicing attorneys, according to Elardo.  He obtained a $33 million verdict against various corporate and personal defendants in a RICO/fraud trial.  The case required extensive use of electronic documents, emails, and other digital evidence.

Attorneys who work in cases where the data involved need to become data and software engineers.  That’s because the processes and technologies around e-discovery can be just as complex as the amount of data involved as well as the sophistication of the data architecture one has to work with.

E-discovery “is the electronic aspect of identifying, collecting and producing electronically stored information (ESI) in response to a request for production in a law suit or investigation,” according to CDS Legal.

Hardcopy evidence can often be more straightforward, and forensic experts can attest to the authenticity, or lack thereof, of traditional hard copies.  Electronic evidence is more dynamic and often contains metadata such as time-date stamps, email confirmations, electronic signatures (or forgeries), log in passwords, online accounts, author and recipient information, and file properties.  Electronically stored information must also be preserved in order to protect the integrity of the judicial process.

E-discovery is now crucial in the nation’s courtrooms.  As such, attorneys are requiring new IT-related skills in order to deliver for their clients.

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