bit-x-bit,LLC’s Susan Ardisson on Electronic Discovery: a Q&A

Posted By Cliff Tuttle | August 23, 2008

Posted by Cliff Tuttle

Can you remember your first email? Do you remember calling friends on the telephone in those days saying, “Do you have email? I’ll send you one.”

Chances are, you send and receive more email every day in 2008 than you did in a month (not counting spam) ten years ago. And it is very likely that you do a substantial portion of your business transactions using email.

So, what do you think happens in 2008 when lawsuits arise over those business transactions? Right! Everybody wants to see the email. But nobody wants to print out a file cabinet (or in some cases, an entire warehouse) full of paper. We’re past that. Put it on electronic media. And by the way, don’t erase any of the metadata! Welcome to the age of electronic discovery in litigation. Get used to it — there’s no going back.

The following is a short Question and Answer session with Susan Ardisson, an attorney and CEO of bit-x-bit, LLC, a company that provides technical assistance to lawyers and litigants in the field of electronic discovery or e-discovery. If you want (or need) to know more, you can follow the link to bit-x-bit’s website at the end of the Q&A. But read the Q&A first. More challenging material will appear on the electronic pages of PLBT in the future. And there will be a test.

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Q: Until now, electronic discovery has been used almost exclusively in large cases. However, with small companies and even individuals doing the bulk of their business by email, will electronic discovery eventually come to be involved in litigation involving amounts as small as, say, $25,000.00?

A: Yes. There are relatively inexpensive e-discovery capture and review tools available which can suit the needs of smaller law firms and companies. During the past year, we have seen significant growth among small and medium sized law firms toward establishing in-house processing and review capabilities. And once the tools/systems are in place, the attorney time necessary to review thousands of potentially relevant documents can drop dramatically, making the whole process more affordable for the client.

Q: Is there currently a danger that a large business employing a large law firm equipped for electronic discovery will force a small company with limited ability to pay for litigation costs to settle unfavorably by hitting it hard with requests for production of documents on electronic media?

A: Certainly that possibility always exists in litigation. However, because each side bears its own costs for production of electronically stored information under the Federal Rules of Civil Procedure, it is often the larger company that must capture and search extremely large volumes of data for potentially relevant electronic documents and may be forced to settle a case because of these costs, particularly in employment law matters. The Journal of Law and Technology at the University of Richmond recently published an article on this issue: Asymmetrical Warfare: The Cost of Electronic Discovery in Employment Litigation by Ronald A. Satterwhite and Matthew J. Quatrara.

Q: What should a small business or individual proprietor do to prepare for the eventual possibility that its electronic records will be subjected to electronic discovery?

A: Establish clear business records retention and destruction policies that are adhered to by everyone in the company. Then backup and preserve all possible electronic data (business records/documents and email).

Q: What developments in technology do you anticipate occurring in the next ten years that will impact litigation?

A: On the negative side, as the volume of electronically stored data continues to increase, what must be captured and reviewed in the discovery phase of a case for potentially relevant electronic data will also continue to rise. On the positive side, however, the tools available to index and search this growing repository of electronic information are continuing to improve.

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Susan Ardisson, Esq. is the Chief Executive Officer of bit-x-bit, LLC, a computer forensic and e-discovery firm located in downtown Pittsburgh. Certified in computer forensics through the International Society of Forensic Computer Examiners (ISFCE), bit-x-bit recently received the exclusive endorsement of the Allegheny County Bar Association (ACBA) to provide computer forensic and e-discovery consulting services to ACBA members. For more information about bit-x-bit’s services, please visit www.bit-x-bit.com by clicking here or call 412-325-4033.

If you would like to read the article mentioned by Susan Ardisson (“Asymetrical Warfare . . .”) click here.

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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