‘Authenticity crisis’ in e-discovery, and astronomical costs

BVWireIssue #64-1
January 9, 2008

There could very well be a looming “authenticity crisis” in the discovery and documentation process of civil litigation in general—and valuation-related litigation in particular, according to presenter Tom Hilton (Anders Minkler & Diehl LLP, St. Louis) at this week’s National CLE Conference in Vail, Colorado sponsored by the Legal Education Institute (LEI).  The newly amended Federal Rules of Civil Procedure have now put the discovery of electronically stored information (ESI) on par with paper documents.  With the plethora of ESI—including innumerable electronic drafts of documents, “Is there such a thing as ‘an original’ anymore?” Hilton asks.  How does one prove authenticity in the Information Age?  Further—how do you request the most useful form of ESI if you don’t know the respondent’s systems?  How do you discuss preserving ESI when you may not know what or where it is?   When the parties can’t agree on the form of production, are courts technologically adept enough to decide for them?

Hilton sees “full employment” for forensic technology consultants.  His firm has already aligned with a data recovery firm and introduced them to local attorneys.  “We have a cottage industry that will become huge,” he predicts—and costly.  A recent litigation engagement lasted 2 ½ years and took 16 days to try.  On the date of the alleged breach, the plaintiff—after giving required notice—walked into defendant’s business and with the help of federal marshals, seized the server to preserve all ESI in as pristine condition as possible.  It took 8 days, 24 hours per day, to download the data—and by the end of the case, the fees for Hilton’s firm amounted to $2.1 million, while the 40 attorneys billed over $50 million.

In that case, the plaintiff (who retained Hilton’s firm) owned the server.  “I’m waiting for the call from an attorney who says, ‘where is it possible to find the information you need?’”  In the meantime, it’s easy to find the amended federal rules, available here.

Please let us know if you have any comments about this article or enhancements you would like to see.