Electronic Discovery and the Paralegal
Julie Wade
The workflow for the litigation paralegal
has dramatically changed with the
discovery of electronically stored
information (“ESI”) as authorized by
the federal rules and TRCP 196.4.
The impact is profound and requires
today’s paralegal to master new processes
and procedures.
In the mid to late 1990’s, the role of litigation
paralegals began synthesizing with
litigation support technologies. In addition
to mastering the issues relating to the law,
litigation paralegals were beginning to
master a host of new word processing,
database and other various legal software
programs to assist them in the identification,
collection, sorting, organization,
reviewing, redacting, bates numbering and
preparation of documents for production.
Today we live in a post- Sarbanes-Oxley
defined world. Records management is no
longer defined as calling up a shredding
truck to come on over. SOX and other
SEC requirements, coupled with the federal
rules changes, require companies to
employ a defensible system of identifying,
maintaining, preserving, collecting, and
producing information from their systems.
Courts are going online daily throughout
the country.
Paralegals must keep on top of all the
technologies employed by their clients and
the courts—in addition to the plethora of
vendor software and web repositories
available to house all the data. As corporations
deal with increasingly complex, massive
cases, in-house departments and law
firms are looking to a new position to
tackle the problem. More case managers
are being hired in the hopes of saving
money. Ideal attributes for a case manager
include: 1) Exceptional organizational
skills; 2) Ability to work effectively with
professionals at all levels within and outside
the organization, including inside and
outside counsel, corporate executives, support
staff and vendors; 3) Ability to both
see the big picture and pay attention to
details; and 4) Sensitivity to cost control
issues. (Esquire Group Survey, 2007)
The proliferation of large-scale, document-
intensive cases and the explosion of
e-discovery show no sign of slowing down.
Here are some staggering, and sobering
figures:
Discovery now accounts for 50% of
the litigation costs of the average
case, and up to 90% of the litigation
costs in cases in which it is actively
pursued. (www.uscourts.gov)
90% of all communications now
take place electronically, and more
than 90% of all potentially discoverable
information is generated and
stored electronically. (Trial magazine).
A typical Fortune 500 company has
125 ongoing legal matters at any
given time, with at least 75% of
those requiring e-discovery.
(Corporate Counsel magazine)
U.S. companies spend an estimated
$4.6 billion annually to conduct
internal analyses of email alone; email
analysis in a single, high profile
case can reach $5 million.
(www.law.com) Electronic data is
obtained in 3 out of every 4 lawsuits
involving Fortune 500 companies.
(The National Law Journal)
What do all these numbers add up to? $2.8
billion. That’s what discovery costs in the
U.S. are estimated to be during the year
2007. (The 2005 Socha-Gelbmann
Electronic Discovery Survey Results, Socha
Consulting, 2005) I’d like to see the real
numbers when they come out, they will no
doubt be higher.
Paralegals must learn what ESI is all
about. Read the rules. Read the white
papers. Invest your lunch hours attending
webinars. They are given weekly and they
are free. A good starting point would be to
study the Electronic Discovery Reference
Model found at http://www.edrm.net.
Read also The Sedona Guidelines found at
http://www.thesedonaconference.org.
ESI will require diligent investigation
and analytical thinking by individuals
whose minds are also needed
to mission other critical activities
in the process. (EDRM)
Julie Wade is a Paralegal for the law firm
of Harrison, Bettis, Staff, McFarland &
Weems, LLP. She has over 25 years of legal
experience and recently obtained her certification
and advanced certification in electronic
discovery from Kroll OnTrack. Julie
received her paralegal certificate from the
University of North Texas, Professional
Development Institute. She is a member of
Paralegal Division State Bar of Texas, and
the Houston Paralegal Association.
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