It should be no surprise that electronic discovery has already changed, in a profound way, the litigation landscape. Just like qualifying to enter the Boston Marathon is one thing, winning the race is an entirely different story. Electronic Discovery and Evidence by Michael R. Arkfeld and published by Law Partner Publishing will help the attorney prepare and understand some of the basics of electronic discovery for the 21st Century.

The book has very little to do with bankruptcy cases, but that should not be a deterrent to understanding and appreciating the changing world of electronic discovery. What makes this book necessary is that it's not about the Sedona Principles, or the proposed changes to the Federal Rules of Civil Procedure (FRCP) (for electronic discovery) that are perhaps destined to become final before the end of 2006; rather, this is a good book on electronic discovery.

Speaking from a technical perspective on electronic discovery and recovery of digital electronic information in bankruptcy litigation, the book is somewhat light, and bankruptcy attorneys will subsequently need to augment and focus on current business technologies. This reviewer has consistently found that degrees of separation resulting from changes in technology that occur every six months, so don't wait, because an electronic form of locust has already landed.

That being said, this book has more than 400 pages consisting of eight chapters, a glossary of terms and an alphabetical index by subject, and is a good entrée into the digital electronic world of litigation. Copyrighted in 2003, you are going to find the need to read this more than once. Indeed, when professionals fail to realize that the devil is generally found in the details of electronic discovery, it does look easy for those who are knowledgeable.

Chapter 7 provides insight on obtaining electronic data from third parties using the subpoena powers found in FRCP 45, and has some good coverage of the attorney/ client privilege and litigation-support databases. While the alphabetical index failed to show the reference for FRCP 36, Request for Admissions, chapter 7 has indeed done it right. Inasmuch as use of request for admissions in electronic discovery can be every bit as crucial as the electronic data found on hard disk drives, the author states in chapter 7:

Unfortunately, many attorneys do not understand the purpose of the rule and fail to use it to their advantage...request for admissions can be effectively used to establish genuineness of computer data such as e-mail, word processing documents and other electronic information.

Query: How long will it take before FRCP 36 is required (under Local Bankruptcy Rules) for electronic evidence in adversary proceedings? The key is to be knowledgeable and succinct in drafting those admissions regarding the electronic evidence, in what is perhaps one of the best-kept secrets that remains untouched by the proposed changes to the FRCP.

Coverage of "Discovery and Production Process," found in chapter 6, is again good, and the author provides insight to those not familiar with electronic discovery:

The stated purpose of discovery underlying FRCP 1 "is to secure just, speedy and inexpensive determination of every action." If the opposing party engages in stonewalling and other delaying tactics, then discovery is inconsistent with the underlying principle of Rule 1. The purpose of discovery is not to obtain all the data you can, but rather focus on the relevant, critical information that will assist in resolving the dispute. The parties should keep their attention focused on not the universe of relevant information, but instead the relevant information that pertains to claims of defenses of their case.

The electronic discovery litmus test for this book is found in chapter 6 on the Zubulake case.² Attorneys have focused on the seven rulings of Zubulake, and we find it has become a cornerstone in electronic discovery cases. The author made sure to include what counts in Zubulake, as found in what the court stated on May 13, 2003:

Nonetheless, UBS argues that Zubulake is not entitled to any further discovery because it already produced all responsive documents—to wit, the 100 pages of e-mails. This argument is unpersuasive for two reasons. First, because of the way that UBS backs up its e-mail files, it clearly could not have searched all of its e-mails without restoring the 94 backup tapes (which UBS admits that is has not done). UBS therefore cannot represent that it has produced all responsive e-mails. Second, Zubulake herself has produced more than 450 pages of relevant e-mails, including e-mails that would have been responsive to her discovery requests but were never produced by UBS. These two factors strongly suggest that there are e-mails that Zubulake has not received that reside on UBS's backup media.

Chapter 6 will continue to hold the interest of readers as it explains the electronic-production process and the production response plan, right along with the need for the attorney to understand the client's information technology systems in order to avoid sanctions; this is followed with some good practice pointers for preservation of evidence and reported cases:

Producing electronic information involves many of the same legal principles, strategies and understanding as in requesting electronic information. It will require you to understand how computers work [and] legal principles that affect production as well as how information technologies are used in your client's personal or business life. You will need to provide proactive advice to your client as to the preservation and production of electronic information, as well as document retention policies.
A practitioner responding to discovery requests must understand how electronic data is generated and maintained in order to comply with discovery requests and effectively oppose objectionable requests. This is especially true because the costs associated with electronic production, and the stakes in successfully defending against such discovery, frequently are higher. To effectively defend against electronic discovery, a practitioner should be familiar with the scope and form of production, privileged and spoliation principles.

You will discover that even though your clients feel that they have conducted their business in an open, honest and ethical manner, it can be expensive to defend against discovery requests for electronic information. Also, since e-mail and other forms of electronic information are often created in an informal manner, many times this information can contain derogatory information. Whether it is taken out of context or is the result of a disgruntled employee, it can be extremely damaging to your case when it is shown in the courtroom.

Attorneys and others involved in litigation and contemplating future litigation can benefit from Electronic Discovery and Evidence. A word of caution, though: Electronic discovery is so unlike hard-copy production that if you have not experienced the long-term effects of "once bitten, twice shy" inflicted by the electronic discovery locust, you will, unless progressive steps are taken to understand the changing digital electronic world.

The technical aspects of this book are generally found in Chapters 1, 2 and 3, "Electronic Information in Litigation," "Creation and Storage of Electronic Information" and "Structure and Type of Electronic Information," respectively, and are technical, so be prepared to read and ponder the implications for clients and bankruptcy law practice if these measures are not used to obtain electronic evidence.

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Footnotes

¹ Jack Seward is a contributing editor for Norton Bankruptcy Law and Practice, 2d by Thompson West, and the ABI Journal's "Straight & Narrow" column. He has written and spoken extensively on the subject of protecting and retrieving digital electronic information. A digital forensic accounting technologist in New York and veteran of many years of forensic accounting and electronic data sleuthing, he provides litigation support, including e-discovery for bankruptcy, insolvency, judgment enforcement, and the discovery and recovery using computer forensics. He may be contacted at (917) 450-9328 and by fax at (212) 656-1486. Return to article

² Zubulake v. UBS Warburg LLC, CIV.02-1243, 2003 WL 21087884 at *6 (S.D.N.Y. May 13, 2003). Return to article