Mark Herlihy (Law Office of Mark E. Herlihy)

Opportunities: Access to EVERYTHING.

Risks: Access to EVERYTHING.

Balanced Solution: THe issue, I think, boils down to a filtering problem. We would never accept form based, rather than content based filtering, e.g., you must produce all your white paper documents, but need not produce ytour yellow-pad documents. Similarly, we should never accept a "produce your hard dirves" solution. Filtering relevalt documents requires content screening, first by the producing party's lawyers, wit the resultant set being available to the discoverer's lawyers. I think properly designed digital tools should make both reviews easier and cheaper.

Outstanding Question: The "distributed information" issue was touched on, but is clearly the most troubling. Is joe employee's home computer, on which he occasionally telecommutes, and sometimes works offline, part of the corporatee intranet for discovery purposes? What process is he (as opposed the corporate party) entitled to before that computer can be invaded?

Where to Go from Here: Big live conference, preferably with a party at House of Blues afterwards, like Signal to Noise.
;-)

I'll be very interested in the on-line CLE course.

Sidney Kanazawa (Pillsbury Madison & Sutro)

Opportunities: Efficient resolution of certain types of disputes where: (1) categories of needed information are clearly and easily definable within the data base; (2) a single sweep of data can be cost effectively categorized and used in multiple matters; and (3) large amounts of data can be easily and quickly distributed to multiple people with little expense.

Risks: (1) Cost.
(2) Use as an offensive weapon (cost).
(3) Unfair dispute resolution created by disproportionate data set sizes between the parties and an appearance of hiding created by cost prohibitions and human errors in manipulations of large data bases.
(4) Ironic loss of speed in the judicial process caused by forced review of massive set of speedy electronic, internet, intranet, and mobile communication data.
(5) Loss of privacy.

Balanced Solution: Yes. A concerted effort to resolve disputes, rather than "find the truth." It is unrealistic to think discovery will allow 12 jurors sitting passively to find objective truth that the parties' lawyers could not find after working feverishly over the details for several years. It's about good and bad and cost. Cut to the chase -- let's find solutions and resolve disputes rather than perfect truth. This is why early mediation and arbitration are so popular today.

Outstanding Question: Are any new rules required to address electronic discovery?

Where to Go from Here: Develop model rules -- if appropriate -- or at a minimum a handbook of information to assist in evaluating and resolving electronic discovery disputes (including check lists of data types, budget spreadsheets, forms -- e.g. discovery sheet that asks questions like (1) data set sought; (2) reason and likelihood of relevant data; (3) burden of producing; (4) alternative information sources.

richard e, best (superior court)

Opportunities: Lower costs and more focused discovery particularly using the techniques emphasized by John Jesson.

Risks: The truth may come out.
Parties may systematically destroy evidence under the guise of a document "retention" policy to avoid discovery or the perceived costs associated with it. Courts will then have to deal with the issues of spoliation for those who do so.

Balanced Solution: The existing legal concepts provide for the balancing of all the interests mentioned by the panelists. The problems arise when lawyers and judges are not informed or are not seeking the same objectives and are, therefore, not working toward the solution of the problems and issues. This has always been an impediment to cost effective discovery whether hard copy or electronic.

Outstanding Question: Technical ways to protect privacy and privilege while realizing the economical benefits of electronic discovery

Where to Go from Here: Collect real life examples, as opposed to cle hypos, of problems faced and the solutions employed. Have experts review and analyze them and comment on or suggest better ways to handle the problems. Make this database available on the web site so that we can all profit from the experience of others rather than reinvent the process or continue to stumble along. We will problably not get legislation, rules or meaningful and controlling court decisions in any, let alone all, juridictions. Informed lawyers and judges are the best way to make the system work.

Benjamin Reeve ()

Opportunities: Obviously, some of the same "machine efficiencies" that have been applied to
other forms of office work, e.g. searching by machine rather than having a person have
to leaf through a huge stack of paper, can now be applied to the discovery process in litigation.
Lawsuits that were not before practicable become possible and economical. Whether that is a
"great opportunity" is a separate question.

Risks: We are on the verge anyway of finishing the transformation of a legal
system based upon rights and associations in connection with rights into a system pretty much based upon surveillance
and inquisition. Digital discovery threatens to extend and finalize the last part of
that transition. This would particularly happen, for instance, were not the proper distinctions
drawn between the discovery of informational effects related to artificial persons, corporations,
and natural persons, people like you and me. Claims to the effect that the "privacy"
rights of a corporation, (a thing chartered by the state), should be anything like the
privacy rights of natural persons, for example, will only unjustly diminish the privacy of
people or unjustly afford non-natural entities scope beyond what they should have.

Balanced Solution: Yes, but it begins from a place MUCH, VASTLY, ENTIRELY more
fundamental than today's discussion. Panel members were discussing
administrative convenience as if it were the basic topic to be considered.
In their day to day lives no doubt it is, but it isn't the real
question, and not much of a worthy balance can be struck upon administrative convenience.

Outstanding Question: All the important questions were left unanswered. No one even thought about the many
circumstances in which various aspects of the functionality of certain information is in
question. (Example, you are going to do discovery in a case in which the behavior of certain
internals of a very large computer program, an operating system, is in issue -- to what are
you entitled? The binary image itself will do you little good, even if you have a battery
of experts ready to disassemble it. The source might help, but assume it comes in a lot of
very "distributed" modules, created over a period of time, and the authors are now distributed
around the industry. Suppose Microsoft hadn't written e-mail about what it was doing to Netscape,
but you wanted to prove what it was doing nonetheless? (And gates gets some sleep and some coaching and
doesn't embarrass himself in videoed deposition testimony)
Or, other example, suppose some teenager doesn't happen to brag about his not-so-incredibly-clever denial of service attacks
on a large network. Suppose a particular teenager engages in clever attacking and keeps
his mouth shut -- but you want / need to catch him. Can you call what you would want to / have to
do to the many logs of the many nodes on the network "discovery?")
Or, to what extent is it possible to force discoverers to describe precisely the
search that will be run against some large body of discovered data -- and ensure that
no other search, (to which they have no right, say), is run?
Or, what about genuineness? How do we know that some "expert" who pulls
an erased file off a disk isn't getting an admixture of three different files, (numerical data
say, not impossible)?

Where to Go from Here: Backward, I guess. Back to rights in non-physical things.
back to questions of the legal effect of providing information, for
example to a vendor. Does, and should, the vendor then
have the right to sell, (without asking, without a license of any kind),
that information? Why? Because the vendor has it? Because a license or
permission of some kind was implied? How so?
And then "forward" again to the situation in which there is litigation
between parties.

Ransford Pyle (U. of Central Florida)

Opportunities:

Risks: This potentially converts every private citizen into a public figure, subject to unscrupulous scrutiny by politicians, bureaucrats, lawyers and the press. we live in a society of diminishing honor, dignity, and respect; this development is likely to extend the vulgarization of American society and the individual's sense of paranoia.

Balanced Solution: I would like to see an e-mail privilege for private, non-official communications. The privilege could be enjoyed by the recipient; it could be owned by the sender, or both.

Outstanding Question: The introduction of any new discovery device increases the cost of litigation, not to mention legal extortion, and further shifts legal advantage to wealth and power.

Where to Go from Here: Having been trained in anthropology as well as law, I am inclined to urge an inquiry into actual and intended uses of digital discovery. I want to know if this development is as insidious as I fear it to be. Because of the current lack of scruples in the legal profession, we should assume that this form of discovery will be used in the most devious ways. Present uses of discovery devices in general demonstrate a frequent misuse.

()

Opportunities:

Risks:

Balanced Solution:

Outstanding Question:

Where to Go from Here:

(Anonymous Submission)

Opportunities: The opportunity for plaintiff's to
obtain information at a potentially lower cost
from predominately digital based defendants than
from paper based defendants.

Risks: Invasion of privacy of corporate employees due
to the difficulties of distinguishing between
personal and business correspondence.

Balanced Solution: Careful review of records retention policies to
not keep information any longer than organizational
necessity or applicable statutes of limitations
provide for.

Outstanding Question: I confess that I had to leave the webcast before it ended
so I don't know if the question of key recovery
in discovery of encrypted information was addressed.

Where to Go from Here: Keep subscribers to the Berkman Filter informed
of any new webcasts and/or conferences.

Joe Valentine (Wheeler Trigg & Kennedy)

Opportunities: This question and the following one demonstrate the common sense wisdom of the pun, "One man's fish is another man's poison." Whether one perceives digital discovery as offering opportunities or risks will depend on one's status as a requesting party or a responding party.

More precisely (because a party in litigaiton typically acts in both capacities at one time or another), one's view often depends on the extent to which one is predominantly a requesting party or a responding party. For example, in product-liability litigation (as an model of litigation in which one party is an individual and another a large corporation), the defendant(s) typiically have hundreds or thousands of persons or company units from whom a plaintiff might seek discovery, whereas discovery from a plaintiff typically is far simpler. In such a circumstance, certain type os digital discovery may be of tremendous benefit to a plaintiff (without respect to issues of fundamental fairness) and of insignificant benefit to the defendant. Likewise with the risk or burden: Depending on the methods of digital discovery allowed, the risks to the defendant could be substantial (even dispositive), while the risks to a plaintiff could be insignificant.

(I recognize, from the webcast and from other sources, that even individuals can be fundamentally prejudiced by improper digital discovery, as in the cases in which the government (and possibly private opponents) are allowed hands-on access, by seizure or otherwise, to an individual's computer. Because that is not an area of law in which I work, I leave that discussion to others.)

In the context of a purported "David/Golaith" lawsuit (this common analogy ignores the highly sophisticated network of plaintiffs' lawyers whose resources rival, or even dwarf, those of the corporate defendant), in which an individual sues a corporation, I believe that the risks associated with digital discovery far outweigh potential benefits WHENEVER DIGITAL DISCOVERY IS CONSIDERED DIFFERENT substantively from traditional discovery. The rules have anticipated appropriate digital discovery since the 1970 amendments (I am speaking of the Federal Rules). I believe that the prudent approach to so-called digital discovery is to address it in the context of traditional discvoery.

I suggest that the apparently simple statement in the previous sentence is vitally important in an analysis of digital discovery. For example, in the webcase, there was a brief discussion of whether back-up disks or tapes and archive disks or tapes should be treated as within the scope of discovery. Under the rules since 1970, I believe that the answer is, without cavil, Yes. Rule 34 explicitly encompases "data compilations from information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form." From a scholar's point of view, it may be legitimate to discuss whether the rule should be amended; from a practitioner's point of view, such back-ups and archives are plainly within the rule and need to be considered in any response if one intends to satisfy ethical obligations.

Accordingly, emails -- whether in current files or in archives -- plainly are proper targets of discovery. Because emails capture information that previously (in most instances) would have been communicated only orally, the existence of emails presents a genuine opportunity to a requesting party. Responding parties thus have a concomittant risk and, as a management practice, ought to develop a strategy to address that risk.

The above example identifies an evolution in the type of document or data encompassed by a discovery request in today's world. The important point is that this type of data (which did not exist) until recently) nevertheless was explicitly anticipated by the 1970 amendments to the discovery rules.

A far more serious issue is whether digital discovery justifies changes in the METHOD of discovery set out in the rules. The requesting party may seek (and in my experience has sought) to increase the perceived benefits of digital discovery by altering the method(s) of discovery. The requesting party's reasoning is something like this: If a responding party can use a computer to search more efficiently for responsive materials, then it seems natural to "eliminate the middle man." A requesting may ask, "Why can't I sit down at my oppontents computer(s) and do the searching myself, rather than relying on my opponent's good faith and reasonable conduct in doing the search?"

I believe that a forum on digital discovery needs to evaluate carefully the extent to which such an approach to digital discovery (a) is allowed under the current rules and (b), if not, should be allowed in future amendments to the rules.

Here is neither the time nor the place to debate the issue substantively. Issues that ought to be discussed include concerns such as these: (1) Do the present rules prohibit such "hands-on" discovery? (2) Does such a method of discovery represent a radical, untested change in the traditional method of discovery or a natural evolution? (3) Would "hands-on" discovery violate, or unnecessarily increasing the chances of violating, a responding party's right to protection of such interests as attorney-client privilege, attorney work product, business confidentiality, and privacy? (4) Is the current, traditional process, whereby the burden of reasonableness and good faith is on the responding party, adequate even in this digital era, or has the advent of the digital era somehow made the traditional process antiquated?

I freely state that my answers to the above questions are, for (1) and (3), Yes; and for (2) and (4), the former and not the latter. Nevertheless, I believe that the issues merits substantive debate and discussion.

Risks:

Balanced Solution:

Outstanding Question: See my discussion to the first question.

Where to Go from Here: See my discussion to the first question.

James ()

Opportunities:

Risks:

Balanced Solution:

Outstanding Question:

Where to Go from Here:

James Rosenbaum (USDC - DMN)

Opportunities: As in most other areas, digital/electronic offers speed, [occasionally] economy, and the wondrous power to word-scan. It also [see below] offers incomprehensible breadth of material which can be obtained.

Risks: The almost incomprehensible breadth threatens to overwhelm the good sense of lawyers, and the financial wherewithal of their clients. The fact that something can be obtained is -- too often -- equated with the assumption that it should be obtained.
The ability to mirror a hard drive and capture heaven-knows-what gives new meaning to a wild goose chase. Couple this with a present failure to have any kind of archival program in most places -- allowing discovery of backup tapes beginning in the Pleistocene -- and you have a witch's brew.

Balanced Solution: "Imagine" is probably the right word at this time. But...it seems to me that the law, and society ought to deal with the fact that everything deleted is not necessarily the equivalent of being caught in the Watergate with a cheap transmitter.
I think it is likely that industry-wide standards will come into being for document retention and storage. It also seems likely that client's and insurer's dollar-limitations will force this rational condition on business and the law.

Outstanding Question: Question unasked: "Is the money I feel compelled to spend seeking this perhaps-non-existant needle, worth the money being spent to search the haystack, and burn the barn?"

Where to Go from Here: I do not know enough about the Digital Discovery Project to give a reasonable answer to this question. You'll note that my ignorance, however, does not keep me from blasting into areas where angels fear to tread [above].

William Fredericks (Milberg Weiss Bershad Hynes & Lerach LLP)

Opportunities: The opportunity to discover the truth.

Risks: I don't really see any overwhelming risks associated with digital discovery. Although concerns are sometimes expressed about inadvertant disclosure of confidential information, in larger cases practitioners are already used to devising means for protecting such information through confidentiality agreements. In addition, the "burden issue" should continue to become less and less real as technology becomes more sophisticated in this area. (In addition, the burden issue could be significantly lessened if defendants would act more responsibly in the beginning stages of litigation to preserve relevant digital documents, rather than waiting for months (or even longer) to preserve important electronic documents (such as e-mail files or relevant employees).

Balanced Solution: I don't think there's a uniform "balanced solution" for every case, because every case is going to be different. In general, however, where a case is likely to involve digital discovery, the burden should be on defendants to show that they took appropriate steps to prevent the destruction of relevant evidence. One of the biggest problems I've encountered is that defendants delay the production of electronic documents for so long that by the time the issue is before a court the only option for obtaining the information is to get it from back-up tapes -- which can be a costly proposition. Accordingly, when a complaint is filed, the defendants' lawyers should be much more active at the outset of litigation in identifying and collecting digital documents from their clients, rather than waiting six or more months by which time the information will be harder to retrieve. Where certain employees or officers are likely to be at the center of the challenged conduct (e.g., the complaint names specific individuals as defendants), steps should be taken sooner rather than later to create a back-up of those individuals hard-drives, since it is virtually inevitable that plaintiffs will try to obtain all relevant documents -- including e-documents -- from those individuals sooner or later.

While courts will presumably continue to exercise judgment in managing discovery in particular cases, it must be stressed that it is always going to be the party that owns the digital documents that will be in the best position to reduce the burden of e-discovery by identifying and preserving pertinent files, hard-drives, tapes etc. that contain discoverable information. That doesn't necessarily mean that defendants or their counsel have to take steps to review and preserve every piece of digitally-stored information in their company, but it does mean that defendants or their counsel should be required to take steps at the outset of litigation to preserve e-evidence, and should be prepared to defend the scope of their preservation efforts down the road when e-discovery issues are litigated.

Outstanding Question:

Where to Go from Here:

(Anonymous Submission)

Opportunities: Opportunity for the party advancing the digital discovery demand to obtain a more intimate picture of their adversary's day-to-day business dealings.

Risks: Huge proliferation of costs to determine the information systems hardware and software parameters before you even reach the merits.

Expanded oral discovery demands (depositions), as the parties seek to follow-up on the kernals of relevant e-mail and other material disclosed.

Balanced Solution: It is now well-settled that "traditional" discovery demands encompass "digital" information. Parties representing that a "reasonable search has been undertaken" have little choice but to include an appropriate review of their e-mail and other digital records. While they fail to do so at their own peril, there is certainly some question asto what that reasonable effort entails.

Outstanding Question: What is the scope of a "reasonable effort" to obtain and disclose relevant information and documents?

Where to Go from Here: I don't know, but would be very pleased to be kept in the loop somehow.

Avniye Tansug (HDD-IPRA)

Opportunities: Finding proves in a scientific way...

Risks: The possibility of destroying privacy while trying to reach the truth...

Balanced Solution: Clear definitions or re-definitions of the Privacy,Human Rights, Digital Justice... can be balancing... Law must not be something reactive... on the contrary it must be a guiding tool by combining technology and the new way of lives occurring with the classical rules and principles...

Outstanding Question: Privacy and justice...

Where to Go from Here: The project would better go to define the new "digital" concepts... For instance:

Digital product/ digital delivery... (When do I exactly supposed to deliver the digital product? Is that when I :
-save it in my hard disc at my home?
-download it into a certain space in the web?
-save it in my Intranet in the company?
(What happens if I save the digital product to my memory stick and go on to watch it in the PC of a friend of mine?)

Thanks a lot...

Michael Rhoden (Fios)

Opportunities: Cost effective discovery of large amounts of data

Risks: Careless requests that increase the size of the haystack without increasing the likelihood of finding the needle

Balanced Solution: Yes. Appropriate technology to access and mine the potentially massive amounts of data. Standardization of formats and procedures for retrieving, archiving and authenticating data. Active role of the court as advisor and referee in the discovery process.

Outstanding Question: Who pays for it?

Where to Go from Here: More of the same, in the hope that gestalt will be fostered by dialogue