Brian L. Moffet said he saw the writing on the wall about three years ago. The attorney was arguing a national class- action suit with 50,000 pieces of paper entered into evidence when the judge asked, “Where are the e-mails?”
That sent Moffet into scramble mode.
“It was the first time I realized it was something that was going to have to be addressed,” recalled the lawyer with Gordon, Feinblatt, Rothman, Hoffberger & Hollander of Baltimore.
More than 90% of all new information is created and stored in electronic form, according to UC Berkeley. And more than two-thirds of that is never printed. Not since the adoption of the Xerox machine 45 years ago has the centuries-old legal profession been so affected by new technology.
A handful of law firms have created units specifically to mine for electronic information and help clients manage it. Experts say many lawyers aren’t yet comfortable with hunting for electronic data and may be setting themselves up for claims of malpractice because of it.
“Think about it,” said Ken Withers, an attorney at the Federal Judicial Center, the Washington-based research and education arm of the national court system. “If 92% of the information is in electronic form, then they’re only asking for 8% of the information. Obviously, they’re not getting a full picture of what’s going on.”
Recent court decisions have put attorneys and companies on notice by posing hefty fines against businesses and public institutions that fail to properly handle -- or hand over -- electronic records.
In July, Phillip Morris USA Inc. was sanctioned $2.75 million for failing to keep and produce such data in a case that claimed the company marketed cigarettes to minors. That same month, a New York court instructed a jury to infer that the absence of electronic records could be considered intentional and damaging to the defendants.
And a year ago, Baltimore city defendants in a housing discrimination case produced 80,000 e-mails too late, causing U.S. District Judge Paul W. Grimm to refuse their admittance into evidence and preclude some witnesses from testifying.
Electronic evidence “is absolutely explosive in terms of the impact,” Grimm said in a telephone interview. “At first it was somewhat unusual. But in the late ‘90s and early 2000, we started seeing a drumbeat of cases” that featured e-mail evidence, which is often more salacious because of its casual nature.
Discovery, the technical term for the lawyers’ process of collecting evidence and information to try a case, once meant pawing through file cabinets in search of a paper trail. But the explosion of e-mail and other electronic data has turned the procedure on its head, making it more costly and cumbersome but also crucial. E-mail and data can be found on laptops, network servers, disks, hard drives, back-up tapes, cellphones and portable digital assistants -- making them all fair game when mining for dirt that could make or break a case.
“Now, we not only have to sweep files for relevant information. We have to sweep the computers that are relevant too,” said Thomas P. Vartanian, a Washington attorney and a member of the American Bar Assn.'s technology committee.
Without in-house electronic discovery teams, lawyers and companies typically turned to outside businesses for help. The first such companies began on the West Coast in the late 1980s. But it wasn’t until a decade later that the new market began taking off, said George J. Socha Jr., an attorney, market analyst and consultant in St. Paul, Minn.
Today, about 160 companies concentrate on electronic discovery, whose total revenues grew to $430 million in 2003 from $40 million in 1999.
The Judicial Conference of the United States, the policymaking body for the country’s court system, has proposed amendments to the federal Rules of Civil Procedure that specifically address electronic discovery.
The proposals have been presented for comment, which ends in February, and would not take effect until December 2006 at the earliest.