Discovering Knowledge Management

We have left the age of “document management” in litigation. The forms that information takes are no longer limited to paper or to the physical world. Rather, information now occupies digital repositories of varying forms and types. We are now faced with obtaining and managing “knowledge”, rather than “documents”; information of all kinds, of varying forms, and stored on a wide array of devices.

The enormous amounts of information, which may be the subject of discovery in any given case, are staggering. As an example, imagine you are doing the discovery of the following team of ten employees for only a one year period, using one of them as a model:

• She wakes up and connects to the office remotely, from home, on her laptop
• She checks her schedule and then synchronizes her PDA, handheld computer or her cell phone to her calendar
• She makes three telephone calls on the way to the office and schedules two new appointments
• She arrives at the office and swipes an electronic entry card to gain access to the office
• She logs on to her computer and the network
• She attaches her PDA and synchronizes her new appointments and contact list
• She prepares an agenda for an afternoon meeting in her word processing software. She saves it to the network and to her hard drive to work on later
• She accesses a database of sales information and constructs a report, which she saves on the network and attaches to an e-mail message to three recipients
• During lunch, she receives five e-mail messages; three of which have attachments. She responds to two of the e-mails, including attachments, which she edited
• She downloads an interesting article, saves it to her hard drive and e-mails it to 10 people in her team
• It is only 2:00 PM and she has, during the course of the day, received over 50 e-mails relating to business and personal; some of which she responds to and others she files in her document handling system.

During the course of only a partial day, this business person has generated over 35 primary records, in multiple locations, generating multiple copies. She has generated at least (6) instances of metadata. If we take a full day from this person, she may generate over 50 primary records and multiple metadata records. Multiplied by ten, over a year’s time is a staggering amount of discovery.

Fortunately, we have new rules in Federal Court that should assist in making the discovery process there a smoother journey. The new rules require a number of things relating to digital discovery; among them being the “meet and greet”.

Rule 16 — Pretrial Conferences; Scheduling; Management: the case scheduling order may address disclosure and discovery of electronic information; as well as claw back agreements; New

Rule 26 — General Provisions Governing Discovery; Duty of Disclosure: provisions to excuse a party from providing discovery of electronically stored information that is not reasonably accessible because of undue burden or cost; includes preservation of privileges and protections for inadvertent disclosure. Most importantly, the rule creates a process for establishing methods and procedures for the exchange of electronic discovery.

Rule 34 — Production of Documents, Electronically Stored Information, and Things: sets forth some guidance for electronic production. The rule now provides for a procedure for specifying electronically stored information and objecting to the form in which it is to be produced; the default form of production is specified as that “in which it is ordinarily maintained or reasonably useable and “a party need not produce the same electronically stored information in more than one form”.

Rule 37 — Failure to Make Disclosure or Cooperate in Discovery; Sanctions: The revisions sets forth in full: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of routine, good-faith operation of an electronic information system.”

These rules are a good start and one can only hope the state court systems will be able to quickly adapt rules to permit efficient handling of pre-discovery planning of E-discovery production. Unfortunately, parties in the electronic discovery world, particularly large corporate parties, can make production worse than any “snow storm” of paper they ever launched in the “old days”. Given the substantial amounts of data, e-discovery can provide excellent hiding places for parties who want to take advantage of producing in difficult and confusing methods and forms.