New Oklahoma Rules Bring E-Discovery Challenges Home

Article excerpt

While on the road Friday, McAfee & Taft trial lawyer Jim Webb tapped the modern convenience of e-mail to put together a Monday meeting - and in doing so, demonstrated the legal profession's increasing challenge with electronic discovery.

"In the past, this would have been done with one phone call," he said. "It would have generated no documents. Now, when all is said and done, there may be 100 e-mails and texts come from this, just to schedule a meeting."

That demonstrates the growing complexity of e-discovery, where every little text, blog or e-mail could come under scrutiny. And that doesn't even begin to mine concerns over metadata in electronically stored information (ESI), where even long-deleted or background information may still reside in a document, awaiting a sleuthing attorney's eye.

"When a discovery request is set out, all those communications are all going to be in discovery requests, even though many times they're of absolutely no value to either side," Webb said of his meeting-planning efforts. "But they could be an example to know who was involved in the meeting process, who decided not to come. Other issues can go off of that."

New e-discovery rules signed into law this month by Gov. Brad Henry brought Oklahoma procedures largely in line with existing federal practices. When these changes take effect in November, some analysts expect this to rattle attorneys and firms rarely exposed to federal courts or still coming to grips with the vast extent of electronic communications and commerce.

"There are a lot of additional issues to take into account when you're talking about discovery in electronic information," said Sarah Jane Gillett, who leads Hall Estill's new Electronic Discovery Group. "It's an area where mistakes can potentially be made early on that can threaten the outcome of a lawsuit."

By taking these rules to the state level, the change may heighten demand for law firms or specialists able to help judges, attorneys or companies filter through the increasing deluge of e- documentation.

Hall Estill, for example, now offers a Records Retention and Electronic Discovery Assessment Program under Gillett's practice group.

"There's no doubt in my mind that just the proliferation of electronic discovery has absolutely increased the cost of litigation," said Webb. "You can ask any of my clients and they'll probably tell you the same.

"For as long as I've been a lawyer, we've been asking for electronic data, which was usually financial data. In the old days this used to be usually backup tapes of a financial nature. Now, in these days of e-mail and phones, just the amount of data that gets exchanged is off the charts.

"There's a lot of things people say in electronic communications that they never would have said in a written memo," said Webb. "Instead of a single memo, there may be 1,000 e-mails going back and forth. …