Building Your e-Discovery Toolkit

By Julie Anne Halter, K&L Gates

This article appears in the October 2010 edition of DeNovo, the official publication of the Washington State Bar Association Young Lawyers Division.

In 2007, the “digital universe” contained 280,000,000,000 gigabytes of data – roughly 45 gigabytes (or the paper equivalent of 2.25 million pages) for each person on the planet.  Commentators predict that by 2011, the digital universe will be 10 times the size it was in 2006.  And if you take a minute to consider the last time you wrote or received a hand-written letter, used a pay phone, or consulted a casebook to answer a burning legal question, there is no denying that the world has evolved … and with it, litigation.

The much-needed 2006 amendments to the Federal Rules of Civil Procedure include specific provisions to address the explosion of electronically stored information (ESI) and its major impact on litigation.  In general, e-discovery encompasses litigation and regulatory requests for, and production of, ESI.  While an assumed element of complex litigation, the important role of e-discovery in smaller civil and criminal cases is often overlooked or ignored.  But doing so may unfortunately result in significant negative consequences, including, perhaps counterintuitively, increased expense and unnecessary delay.  And, of course, in more extreme cases, doing so may result in evidentiary, monetary, and sometimes case ending sanctions against litigants and their counsel.

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