Surviving e-discovery

In response to the new Federal Rules of Civil Procedure (FRCP), companies engaged in e-discovery are now routinely being asked by the courts to produce vast quantities of information in a relatively short period of time. Intel, with 99,000 employees worldwide and an average email load of 3 million messages per day, was ordered by the court in March to recover 1,000 emails in 30 days. Needless to say, the company was unable to find them.

"It's becoming a normal course of e-discovery to engage in extraordinary action," said George J. Socha, founder of Socha Consulting LLC, an e-discovery consulting service. "Companies are forced to search each and every device where data could possibly be stored …This has the potential to massively disrupt business and, in some cases, bankrupt companies," he said.

Socha's latest report on the market estimates that US revenue from e-discovery tools and services was about $2 billion in 2006, up 51% from 2005. He anticipates the market will grow at approximately 33% from 2006 to 2007, 28% from 2007 to 2008 and 23% from 2008 to 2009. If these growth estimates are realized, the e-discovery market in the U.S. will exceed $4 billion by 2009.

While this is great news for suppliers -- and there are over 600 of them in the U.S. -- it's a nightmare for companies picking up the e-discovery tab every month. "It's a major cost that doesn't add to the bottom line," said Mike McGowan, chief operations officer at Deepdive Technologies, a supplier of e-discovery data collection tools. On top of the cost, McGowan says there's huge confusion among IT on what the right equipment is, and in many cases, people are double spending as they buy one product, which then fails to meet all their needs.

On the legal side, Craig Bertschi, partner at law firm Kilpatrick Stockton LLP and chairman of the company's e-discovery team, said that court decisions are "all over the map" for e-discovery, as the rules are so new and the technology is not well understood by judges and lawyers. In the worst cases, lawyers are acting in bad faith because there are too many grey areas.

Hide and seek

Qualcomm Inc. lost a patent case against rival Broadcom Corp. recently, and adding insult to injury, Qualcomm's counsel deliberately concealed evidence, leading to even more trouble for the mobile phone chipmaker. Qualcomm's lawyers produced more than 200,000 emails and other documents pertaining to the case four months after the jury trial was over.

"With email being sent to more than one person and able to exist in so many different places, it is impossible to hide it," said Brett Shavers, president of e3Discovery LLC. "It can be very damaging to withhold it, and companies are ill-advised ever to do so."

Timothy Block, attorney for Best Buy in a class-action lawsuit brought against the company in 2003, went one step further and falsified two emails and one internal memo in order to improve Best Buy's image. Obviously, faking evidence doesn't go over well with the courts, and the judge might end up issuing a default judgment against Best Buy for this egregious contempt. The case is still ongoing.

E-discovery not getting simpler

Bertschi says there won't be a silver bullet on the technology side that will make e-discovery any simpler. Instead, he said he expects the court system and practitioners to begin to learn and understand more about IT systems. As a result, there will be more standardized procedures, he believes.

"The amendments to the Federal Rules of Civil Procedure are fairly broad and don't provide guidance for the day-to-day operation of litigation. So, you see a disparity of opinions: some courts deciding an issue one way, some courts deciding an issue another way," Bertschi said. Eventually, the courts will reach a consensus on how e-discovery issues are handled. "Five years from now," Bertschi said, "we won't be asking questions like: 'Do I need to preserve metadata? Is there any need for me to have a client retain a backup tape? Can discovery be had from a disaster recovery system?' Those questions will all be answered uniformly … We're at the very beginning of these issues now, and so, you are going to get differing opinions".