Electronic Evidence and Discovery: What Every Lawyer Should Know.
The trial lawyer's lot has been anything but easy of late, so when the rare opportunity to level the playing field comes along, don't let it slip by. Electronic discovery is both a golden opportunity and a challenge to your knowledge, tenacity, and resources. Compelling your opponent to preserve and produce digital evidence is a big gun and knowing what to do when their guns take aim at your client's electronic evidence is an essential skill.
Considering the trepidation that swirls around electronic discovery, you might expect the latest book on the subject to come from Stephen King. To its credit, Electronic Evidence and Discovery: What Every Lawyer Should Know, by Michele C.S. Lange and Kristin Nimsger, reads like a novel.
Built on good prose leavened with anecdotes, it's as close to a page-turner as you'll find on the topic. The authors do an exemplary job establishing the "big picture" of e-discovery, outlining fruitful places to search beyond the e-mail-box and local hard drive.
Although the first and last chapters are little more than bookends for the two substantive ones in the middle, the foreword by noted e-discovery guru Kenneth Withers is brilliant, and the appendices are rich with forms and examples of discovery documents. Lawyers launching their first e-discovery salvos are sure to welcome the forms, whether using them prudently as checklists or less so as templates.
Chapter two offers lucid and practical discussion of steps for locating and requesting electronic discovery, responding to requests, and avoiding data-preservation pitfalls that could lead to spoliation charges and sanctions. After identifying a broad array of devices and forms in which data may be found, the authors lay out a simple (but not simplistic) six-step process for using existing discovery rules to identify and acquire electronic information. Lange and Nimsger then discuss the producing party's duty and steps it must take to meet the preservation and review burden; examples of costly failures in high-profile cases hammer this point home.
The authors conclude the chapter by touching on common legal challenges posed by electronic evidence, including cost-shifting and admissibility considerations. Here, they sound a sour note when they warn readers to "make sure that best-practice protocols were used in imaging and investigating all computer evidence" without indicating what such protocols might entail or steering the reader to a reference. Certainly these authors are well qualified to propose a list of "best-practice protocols" in this otherwise excellent chapter.
Chapter three reviews the nuts and bolts of e-discovery--particularly computer forensic techniques used to marshal, manage, and filter data in preparation for production. Although this is valuable information, the authors present it less objectively than they do the material in the preceding chapter; it seems to have been adapted from sales brochures and corporate white papers. At times, the repeated suggestion to "consult an e-evidence expert" and references to the authors' employer, Kroll OnTrack, may strike some readers as self-promotional, but the authors' connection to one of the largest e-evidence service providers gives them considerable experience "in the trenches," and they share case examples to illustrate their points.
Except for the blatantly self-serving "Industry Surveys" section, the modest promotion is more than balanced by the strengths and real-world approach of the book. The authors are scrupulously evenhanded in identifying competing service providers and fairly objective when describing production methods and formats that their employer doesn't favor (though, I confess, reading the factors to consider in choosing an online review tool, I cynically wondered whether the Kroll OnTrack tool might be the only one that meets their standards).
Chapter four, a brief epilogue offering encouragement and predictions of near-term developments in e-discovery, also serves as a prelude to what may be the most valuable part of the book: the appendices. They are a mixed bag of handy documents, ranging from a dense, topically organized digest of electronic-discovery and computer-forensics case law, to selected rules and statutes that affect electronic evidence, to the much-sought "sample" discovery requests (although using such samples is rarely appropriate). A skeletal glossary and reading list round out these offerings.
The book provides a unique perspective and useful resources, packing a wealth of insight into an easy read at a reasonable cost. I highly recommend it--along with the just-published second edition of Electronic Discovery and Evidence, by Michael Arkfeld--to all attorneys seeking a solid base of e-discovery knowledge.
CRAIG BALL is a trial lawyer and computer forensics expert in Montgomery, Texas. His e-mail address is craig@ ball.net.