Fifteen years ago, almost all information worth saving was printed on paper and stored in file rooms. Today, nearly 95 percent of all information is stored on computing devices in multiple locations.  

While this technological revolution played out, the law of “document” discovery was renamed the law of “electronically stored information” discovery. The law, however, has remained essentially unchanged. Litigants have a duty to preserve relevant stored information as soon as litigation is likely and have a duty to produce the preserved information as requested by an opponent or as required by court rule. The amendments to Federal Rule 26 merely affirm that these duties apply to electronically stored information, or ESI.

During the last 10 years, attorneys, clients and judges have been forced to come to grips with ESI. Courts have issued hundreds of decisions on e-discovery. The vast majority deal with the failure to preserve ESI – due to simple unawareness of how and where computing devices store – and destroy – information. The price of storage ignorance has included expensive court-ordered review of back-up tapes and severe sanctions.  

That’s the last 15 years. Here’s what I see happening over the next few years:

Document processing and search technology hasn’t kept up with the exponential growth in data generation, making the e-discovery process ever more difficult and expensive. As the gap grows wider, organizations involved in litigation often find themselves facing enormous e-discovery costs.

One of the forces driving the fast-growing amount of data is the fact that data storage is only getting cheaper. Today, a terabyte hard drive can cost less than $100. When I purchased my current laptop just a few years ago, an 80-gigabyte hard drive was an upgrade to a $1,000 machine. Now, a baseline laptop costing less than $500 comes with a 250-gigabyte hard drive standard.
                
At the same time, imaging and processing a gig of data is only marginally faster than it was just a few years ago. If search and processing technology continues to be outpaced by storage capacity, then e-discovery methods have to change or they will be prohibitively costly and time consuming.

Gold Bar, Wash. is an old mining town that lies about 50 miles northeast of Seattle in rural Snohomish County. It has one main road and a crumbling rail line that snakes its way along the shores of the Skykomish River.

On most days, Gold Bar is a quiet, little hamlet nestled in the foothills of the Cascade Mountains. By and large, the town’s 2,000 inhabitants – mostly farmers, agricultural workers and small shopkeepers – manage to peacefully co-exist with one another without incident.

Hardly the place one would expect to be the scene of a grisly murder, but that’s just what happened in the pre-dawn hours of June 26, 2008.

Some time in the early morning, 31-year-old Brent Starr slipped into a house owned by his 46-year-old paramour, Debra Canady, and bludgeoned her live-in boyfriend, 49-year-old David Grimm, to death with a hammer. Mr. Grimm was asleep at the time of the attack.

On May 13, I testified as an expert witness for the defense and challenged the reliability of the most damning evidence against the defendants – several mobile phone text messages.

We’ve all sent, received or forwarded emails with jokes, emoticons and personal musings at one time or another in the hopes of getting a laugh out of our colleagues or in an ill-conceived effort to build intra-office camaraderie.

Such emails may seem amusing or even productive when you hit the send button, but they may not seem so a few years later when someone is called to the witness stand to testify about the intent behind a joke about a co-worker, a client or a business partner. Anyone who’s undergone cross examination knows that there isn’t anything fun or pleasant about the experience.
    
It’s vital to remember that everything written in an email can come back to haunt an organization during litigation. Operate under the assumption that anything an organization writes in an email can and will be found by the opposing party during the discovery phase of a trial. Organizations that understand this at the outset of the e-discovery process will save themselves a lot of time, money and aggravation when faced with a legal matter.