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The blog takes a clever approach to the topic. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its “e-lesson” — a suggestion on how to learn from the mistake and avoid it happening to you.

Fernando M. Pinguelo, a New Jersey attorney and Seton Hall law professor, oversees the blog. Law students across the country contribute to the blog’s content.

What is Electronic Discovery Software?

Attorneys, paralegals, and IT staff use e-discovery software to assist in the electronic discovery process. Many e-discovery service providers use their own proprietary software to do e-discovery. If you choose to do it yourself, you have a number of software options to consider.

Software for Various E-Discovery Stages

One of the initial questions is, what stage in the e-discovery process do you need software for? You have a number of options:

• Information/records management prior to litigation
• Identification of electronically stored information (ESI)
• Preservation and collection of ESI
• Processing/filtering and review of ESI
• Production of ESI

No e-discovery software application can handle all e-discovery tasks because that would result in a gigantic, bloated application. Rather, e-discovery software providers offer various tools to assist with each e-discovery phase or task.

E-Discovery Tools

The next question is, what types of tools do you need? E-discovery software can be used for a variety of tasks. For example, electronic discovery software can be used to

• Search for relevant data and emails on a network, Microsoft Exchange Server, or PC
• Recover deleted or lost data (including email) on a PC, network, or other media
• Collect data in a forensically sound manner to preserve file system and file meta data
• Review and mark ESI as relevant, privileged, confidential, or other categories (ESI may include documents, email, spreadsheets, sound, or video)
• Destroy and erase data after litigation is completely over

E-Discovery Software Companies
Some of the largest electronic discovery software and service providers include Kroll Ontrack, Fios, Electronic Evidence Discovery, Renew Data, Zantaz, and Applied Discovery. There are also many small shops that provide e-discovery services.

Electronic Discovery Software Advice

1. Buying e-discovery software is not simple. Courts will not tolerate attorneys with an incompetent e-discovery process that results in missed data or spoliation. The consequences of doing e-discovery wrong has included monetary sanctions, spoliation inferences, and more.

2. If you do your own e-discovery, be sure you know what you are doing. First, the person using the e-discovery software should understand the hardware and software technology where the ESI may reside. Second, the the person using the e-discovery software should understand the court rules governing electronic evidence discovery.

3. Know when to get help. If you don’t have experience doing e-discovery, hire someone who does, such as an e-discovery vendor. If you do e-discovery frequently, it may be worth training someone on your staff to do the work and buying the software tools that are necessary. (Even then, you may outsource some of the complex e-discovery tasks.) If you rarely do e-discovery, hire an e-discovery vendor to do the work for you, which will be substantially cheaper and will ensure the work is done right.

The part of Fulbright’s Litigation Trends Survey related to e-discovery is helpful for those who want to understand corporate law department’s current approaches to e-discovery, their preparedness, and their progress towards adapting to e-discovery law.

You can download Fulbright’s Litigation Trends Survey here (by filling out the form) or download previous annual trends reports here.

This is the fifth year Fulbright has polled corporate law departments in the U.S. and U.K. on the state of global litigation. The 2008 survey drew input from 358 in-house counsel on both sides of the Atlantic, including 251 U.S. respondents. The survey, initially launched by Fulbright in 2004, is the largest canvas of corporate counsel on litigation issues and trends.

E-Discovery is included in the Trends Survey.

For e-discovery, the report included a number of findings. Fulbright’s press release noted this:

Of course, e-discovery and electronically stored information remain an important part of the litigation process, as a normal part of discovery and document production. And it appears that some jurisdictions may still lag behind on dealing with electronic discovery. Twelve percent of companies said they had been before a court or other litigation tribunal ill-equipped to deal with complex electronic data discovery. For financial services and technology firms, which have mounds of e-files and other electronically stored data, 19% and 18%, respectively, reported facing courts and tribunals not up to the challenge.

Survey Details

Fulbright explains more details about the report for those who are interested in how the survey was conducted:

The 2008 Fulbright & Jaworski Litigation Trends Survey was conducted from May 22 through July 18 by Greenwood Associates, a business research firm in Houston that has produced previous editions of the report. The survey, launched by Fulbright in 2004, is the largest polling of corporate counsel on litigation issues and concerns. This year’s Trends Survey canvassed 358 in-house counsel in the U.S. and U.K. More than two-thirds identified themselves as either general counsel or deputy general counsel with 7% holding title of senior counsel, 10% associate general counsel, and 15% staff counsel.

The 2008 survey asks in-house counsel to consider the types of cases they fear most, as well as their attitudes on outside counsel, litigation costs and staffing, arbitration and regulatory issues, and projections for the future. Most of the respondents identify themselves as principal general counsel and senior counsel.

Spanning 10 industry groups—from financial services to energy, manufacturing, health care, retail, real estate, insurance, education, and technology and telecommunications—companies were spread across all regions of the country and were well represented by size: 22% report revenues under $100 million, while 39% have sales of between $100 million and $999 million, and another 39% at $1 billion and above. Forty-four percent of companies are publicly held (including 58% on the NYSE) and 57% maintain at least one foreign office, with 19% boasting locations in more than 20 countries worldwide.

For a related trends survey, see Kroll Ontrack’s 2008 Electronic Discovery Trends Survey or this discussion on e-discovery trends in the forum.

For quite some time I have enjoyed reading The Complex Litigator, a blog that includes coverage of e-discovery in the broader topic of complex litigation. For this reason, I was especially grateful for The Complex Litigator’s recent mention of Electronic Discovery:

• New e-discovery blog offers resources for e-discovery professionals and
• Governor Schwarzenegger issues veto of e-discovery reform bill, AB 926.

Many Faces of Mike

I also follow the excellent Many Faces of Mike blog, and his litigation support posts that include e-discovery. So I was especially grateful for his mention of Electronic Discovery:

• New Resource for E-Discovery.

Gabe’s Guide to the e-Discovery Universe

Another excellent e-discovery site is Gabe’s Guide to the e-Discovery Universe. Gabe stays on top of e-discovery law, important cases, and a number of other relevant topics. Check out Gabe’s Guide if you have any interest in e-discovery law and news.

Visit this page for an ever-expanding list of e-discovery blogs, websites, and other electronic discovery resources: E-Discovery Resources.

Here is my prediction for changes in the e-discovery landscape during the coming year.

E-Discovery plans will become standard at large corporations.

Companies are increasingly realizing the need to have an e-discovery preparedness plan, which includes procedures for the routine destruction of records and documents, steps to implement a litigation hold, and a documented process for e-discovery once litigation occurs. Large and Frequently litigated companies were the first to establish litigation preparedness plans. Large companies will follow, with smaller companies slowing adapting over the next few years.

Infrequently litigated companies will increasingly utilize e-discovery consultants.

Companies first reaction to FRCP e-discovery rules was to figure out e-discovery on their own. This is great for frequently litigated companies. But companies that are rarely in litigation are finding it is not cost effective to have e-discovery staff on payroll.

Small law firms and solo practice attorneys will increasingly use e-discovery in their cases.

Early adopters, those who use e-discovery in litigation, generally included litigators in large, expensive cases or cases clearly necessitating electronic evidence.  But many attorneys simply ignored electronic evidence, possibly because of the complexity of e-discovery and the cost of e-discovery.

As e-discovery awareness improves, and e-discovery solutions get cheaper, mainstream attorneys are increasingly utilizing e-discovery to find evidence in their cases. For example, family law attorneys are starting to see the value of emails in Gmail and Hotmail accounts. Of course, technology-adverse attorneys may remain resistant to e-discovery; these are the attorneys who have refused Microsoft Word because “WordPerfect will do just fine, thank you.”

E-Discovery pricing models will change.

Should e-discovery be based on the amount of data collected, the amount of data reviewed, the number of custodians, or some other factor? The electronic discovery industry is currently wrestling with these questions and some vendors will likely make changes in 2009, if only to differentiate themselves from other e-discovery vendors.

E-Discovery will increasingly expand to include evidence on the internet.

People are increasingly placing information on the internet. This includes what people post to social networking sites (FaceBook, MySpace, LinkedIn, etc.), web mail providers (Gmail, Hotmail, Yahoo Mail, etc.), online forums, wikis, online office suites (Google Docs, Zoho Office, ThinkFree, Ajax13, etc.). As more information gets posted online, attorneys will increasingly seek online data and computer forensic experts to collect the online data.

E-discovery specialization will increase.

Currently, most e-discovery vendors are generalists. E-discovery is so new that there hasn’t been time for specialization. But as the e-discovery industry gets saturated with vendors, companies will start differentiating by specialization. Further, clients will want vendors to have experience in an e-discovery area before they are retained. For example, every vendor will be able to work with Microsoft Outlook. But when a company needs help with a Cray computer, a 50,000 computer network, or encrypted iPhone records, the company will want a vendor with experience and tools for that niche.

Law firms will increasingly establish cross-function e-discovery teams.

As e-discovery becomes more popular, law firms need to have a team that can respond to e-discovery projects. Teams will be comprised of attorneys, paralegals, and IT professionals who can work together to respond to e-discovery tasks that arise from the firm’s litigation.

The electronic discovery industry will continue to grow.

The increasing utilization of e-discovery in litigation will result in higher demand for attorneys who understand e-discovery and vendors who can do the technical e-discovery work. E-discovery is in its infancy, and it will experience another growth spurt in 2009.

That’s my prognostication. What electronic discovery trends or changes do you think will occur in 2009? Leave comment below or talk in the eDiscovery Forum.

. . .

I deleted the remainder of this post and the poll because of a persuasive and gracious comment (see below) from Craig Ball, one of the people originally named in the post as a rockstar. When creating the poll, I failed to consider that

1. the poll failed to include a number of individuals with worthy contributions to e-discovery law, e-discovery best practices, and the e-discovery community in general; and

2. the poll compared individuals to each other, which could result in hard feelings.

The purpose of the poll was to give those who are new to e-discovery some new sources they hadn’t considered, new blogs to follow, and new written works to discover. But I fear that that goal could be over-shadowed by problems. For this reason, the poll has been removed.

In the future, I may publish a list of e-discovery authorities that doesn’t have the problem of comparing rockstar to rockstar. The goal of the list will be to help newcomers to the e-discovery community.

UPDATE: There is a growing list of e-discovery rockstars in the forum.

The veto was especially surprising because the bill passed the California Assembly without a single “no” vote. The move appears to be Schwarzenegger’s reaction to his frustration with the Assembly rather than opposition to the bill.

Schwarzenegger’s veto included language he had used when vetoing a number of recent bills:

“The historic delay in passing the 2008-2009 state budget has forced me to prioritize the bills sent to my desk at the end of the year’s legislative session,” wrote Schwarzenegger. “Given the delay, I am only signing bills that are the highest priority for California. This bill does not meet that standard and I cannot sign it at this time.”

To read politician’s response and a full article on this story, visit Schwarzenegger’s Veto: A Raw Deal for E-Discovery?

The report is an international survey of in-house counsel and their practices for managing electronically stored information (ESI) in litigation and internal investigations. The report also separates the findings between the United States and United Kingdom.

The report notes that people are becoming more aware of e-discovery and more states are enacting laws to govern e-discovery.

The report notes a number of interesting results. For example:

United States companies spent an average of $437,000 on e-discovery, which includes planning and practice management. Compare that to U.K companies that spent an average of £208,000 on e-discovery.

You can obtain a copy of Kroll Ontrack’s 16-page Second Annual ESI Trends Report by filling out the form here: 2008 ESI Trends Report.

The 2007 version of the ESI Trends Report is available here: 2007 ESI Trends Report.

If you want advanced ESI information, I suggest you check out some of the e-discovery organizations, companies, and resources listed on my Electronic Discovery Links. Those e-discovery resources offer indepth analysis, which can be valuable, but can also be overwhelming to those who do not practice in e-discovery on a routine basis.

The menu on this page offers more information regarding a number of important electronic discovery issues. Below are answers to the most basic electronic discovery issues. Thank you for visiting this little electronic discovery site.

What is ESI and electronic discovery?

Electronic discovery (sometimes shortened to e-discovery) is the process of placing electronicially stored information (ESI) into evidence during litigation. In other words, during a lawsuit, the parties initiate discovery, which allows parties to request the production of ESI on the other party’s computers.

ESI is an abbreviation for “electronically stored information,” which includes information on computers and digital recording devices including hard drives, voicemail systems, microcassette recorders, flash memory (e.g. thumb drives, SD cards, flash drives, memory sticks, mp3 players/iPods), digital video tapes, digital audio tapes, and more.

How is electronic discovery done?

Electronic discovery is rarely simple. Electronic discovery often requires hiring an expert because ESI that is relevant to the case may be located in a variety of locations and forms.

For example, the ESI could be on backup drives, CDs, in email, or in files that have been deleted but still exist in hidden form on a hard drive. This ESI might be discoverable. The form of ESI might be in the format of Microsoft Word documents, Excel spreadsheets, PDF files, Outlook PST files, or less common files created by less common software applications on the computer.

What can I learn about ESI and electronic discovery here?

This website seeks to educate corporate attorneys (general counsel, corporate counsel, inhouse counsel) and attorneys with law firms (outside counsel and private lawyers) regarding the basics of ESI generally, and in particular, electronic discovery.

Learn how you can minimize your electronic discovery costs and reduce the risk of malpractice or sanctions by fully complying with electronic discovery rules in your state and the Federal Rules of Civil Procedure. Even more important, learn how to establish procedures in your company so you are prepared for when litigation strikes, ensuring you can gather the ESI relevent to your case within the time established by the case while maintaining an ESI preparedness plan that is defensible in court.