Attorneys are creators, consumers and recipients of electronic information every single day, in both their professional and private lives. So are their clients, and their electronically stored information (ESI) is often important to the cases their attorneys handle.
The December issue of the New Jersey State Bar Association’s magazine, New Jersey Lawyer, examines electronic discovery (e-discovery). Litigators are faced with the preservation, collection, review and production of ESI. The law and the Rules of Professional Responsibility impose obligations on attorneys to understand and comply with their requirements, and to work with their clients to ensure that they do the same.
In addition, the December issue offers several brief articles with news attorneys can use in their practice right away. Those include ways to improve the readability of writing; how to deal with difficult adversaries and judges; and the dos and don’ts of texting clients. NJSBA members can read the full edition on e-discovery at njsba.com.
The edition addresses, among other subtopics, discovery on discovery—where a party seeks information on the process that the other party followed to preserve, collect and produce ESI. Cooperation in the discovery process can help to avoid discovery motions and requests for discovery on discovery, but there’s interplay between cooperation and transparency. Recent cases address discovery on discovery, and there are strategies for making and responding to such requests.
In conjunction with making sure the discovery process is done right, a key concept to understand is how to develop and share suggested search terms for ESI. Rules and case law require attorneys to carefully construct search terms because the failure to do so could have severe consequences, including sanctions. The concepts of cooperation and transparency are paramount in these situations.
The December issue also considers social media discovery. For many, the world plays out on social media, and attorneys should pay attention to the wealth of information that it sometimes contains. The issue addresses the discoverability, preservation, collection and production of social media content, and the privacy rights that some courts consider when deciding whether to order the production of social media evidence.
The edition examines the impact of key rule changes regarding e-discovery, and takes a look at e-discovery through the lens of products liability litigation, which can involve thousands of plaintiffs. It also addresses how to manage the sheer volume of ESI from diverse sources, and the host of trade secrets, confidentiality issues and international regulations that come with it.
Whether a client is a sophisticated company with thousands of employees and piles of ESI, or a small shop with few employees and a less sophisticated information technology (IT) set- up, ESI is often meaningful in the prosecution or defense of the matter.
Evidence is increasingly electronic—and attorneys must know how to manage the rules and technology surrounding it.
New Jersey Lawyer is an NJSBA member benefit. To access the magazine, login at njsba.com.