Technology’s impact on litigation discussed

OXFORD - A panel of judges and lawyers on Thursday examined the problems of dealing with electronic information disclosure in litigation.

Mississippi Supreme Court Chief Justice Edwin L. Pittman said, "All of our discovery rules apply to paper. We are going to see if our rules need to be tuned concerning the computer age of digital information."

Mississippi’s court rules were written for paper documents. Lawsuits in Mississippi courts now raise issues dealing with digital information on computers, palm pilots and other devices. E-mail, computer backup tapes and other digital information can be retrieved and turned over in litigation.

The Mississippi Judicial College in conjunction with the Berkman Center for Internet and Society at Harvard Law School and Fred Friendly Seminars Inc. hosted a panel discussion titled "Digital Discovery" at the University of Mississippi School of Law.

Panelists included Pittman; Circuit Judges George Carlson of Batesville, James Graves Jr. of Jackson and Frank Russell of Tupelo; former judge John H. Whitfield of Gulfport; attorney Harry Baumgartner of the BASF Corporation in Mount Olive, N.J.; Pascagoula attorney David McCormick; and John Jessen, founder and CEO of Electronic Evidence Discovery Inc. of Seattle, Wash. The moderator was Charles Nesson, the William F. Weld Professor of Law at Harvard.

Panelists discussed companies’ obligations to store and turn over digital data, the logistics and expense of dealing with millions of records, and privacy interests that may arise when employees work from a home computer.

The panelists participated in a Socratic dialogue. They were presented with a hypothetical situation and were asked what they would do.

Graves noted that e-mail has replaced telephone calls as a means of internal corporate communication. Someone suing a company may request to look at its e-mail.

Jessen said he has worked with large companies that generate 15 million e-mails a week. He recalled a case in which 300 million e-mails were at issue.

Among the e-mail chatter may be information relevant to a plaintiff’s damage suit and damaging to a company’s defense. For example, in a case involving a company that claimed it had no dealings with a harmful chemical, a shipping department e-mail noted that more than 100 barrels had been sent, but said, "On our end, steps have been taken to ensure that no records exist." A hospital system e-mail in another case recorded, "Did you see what Dr. ... did today? If that patient survives, it will be a miracle."

McCormick, who represented plaintiffs in asbestos litigation and helped represent the state in its lawsuit against the tobacco industry, said, "In asbestos litigation, in tobacco litigation, people kept a lot of information that was damning in memos."

On the plaintiff side, lawyers must figure out what to request and how to request it in specific enough terms to get an answer, then determine if everything requested has been provided, McCormick said. "If you don’t ask for the precise bit of information, you are certainly not going to receive it," McCormick said.

Corporations and the lawyers who represent them must deal with managing massive amounts of unindexed data in the form of e-mails, backup tapes and other electronic records. Some companies save data for years. Others destroy it periodically.

"Corporate business people ... are not thinking in terms of litigation," Baumgartner said. "They are thinking in terms of how do I manage this business."

But the realities of litigation are forcing businesses to rethink how they manage their data systems. One issue is establishing policies on what will be archived and how long it will be kept.

"Why not just burn them?" Nesson asked to spark discussion.

Whitfield said, "You can’t just burn the tapes, particularly when the tapes are involved in some sort of litigation....We are not going to be put in any kind of situation to act in bad faith."

Graves said to order a company to keep everything could practically shut down communications because so many records would accumulate.

Russell said, "I don’t think they are going to be putting anything on e-mail once they are put on notice of a lawsuit."

That doesn’t mean a company has to keep everything forever if there is no threat of litigation, Graves said. "I don’t think there is any obligation to retain records forever in case somebody sues you 20 years later."

Baumgartner said that if a company waits until it is in litigation to deal with legal issues of records storage and retrieval, it could find itself being forced to settle a case to avoid the expense of litigation. A case worth $100,000 could suddenly become a $1 million case if a company had to hire an electronic record expert to deal with its data in a lawsuit, he said.

A records review doesn’t stop at having a computer search and spit out documents. Someone has to read through the documents to see if they contain privileged information that the company doesn’t want to give up. Jessen said to have someone review records can cost roughly $1 a document. A million records can cost $1 million.

What judges must deal with is how much information must be disclosed, the format in which it will be provided and the potential cost of providing the information. Jessen said the owner of the records traditionally is asked to pay the cost of producing them, but some judges on the panel said they would consider cost sharing.

Whitfield, who dealt with electronic documents discovery as a judge, said he ordered defendants to produce paper copies rather than discs. Electronic production would have included document history beyond just what a record said. Electronic records would indicate who touched the record, edited it or had anything to do with it before it reached its final form.

Carlson said judges may need guidance of an expert to deal with a case involving massive computer records. "Definitely the judges will have to get more computer literate," Carlson said.

The Judicial College video taped the two-hour discussion. It may be used by other judges as an educational aid in dealing with electronic data issues, said Leslie Johnson, executive director of the Mississippi Judicial College.