Alumni stress electronically shared information (ESI) essential for litigators
By Brandon Breslow
As William Hamilton (JD 83) addressed members of the North Central Florida Chapter of the Federal Bar Association (FBA), he held an ordinary laptop, standard in weight and design. But to Hamilton, it was the potential equivalent of 12,500 storage boxes of discovery documents, and it needed to be handled with care.
Hamilton, a partner of Tampa’s Quarles & Brady LLP, and Adam Losey (JD 09), an associate with Orlando’s Foley and Lardner LLP, explained the tactical advantages and obligations of using and managing digital information at the chapter’s conference. The pair presented “Federal Practice in the Electronic Age: Don’t Be A Dinosaur” on April 8 in the Martin H. Levin Advocacy Center at the University of Florida Levin College of Law.
“It is absolutely essential for litigators to know how to handle and share electronically stored information (ESI),” said Hamilton, who is also a UF Law adjunct professor teaching electronic discovery (e-discovery). “ESI is dramatically different from paper and litigators need new skills to get the best results for their clients while avoiding sanctions that are on the rise for mishandling ESI.”
The major difference for more experienced litigators is the volume of ESI in their cases. One printed gigabyte of ESI will fill 50 storage boxes and will cost $10,000 to review. Each important witness in an average case provides about five gigabytes of ESI that will need to be collected and reviewed. Assuming a case requires five to 10 of these witnesses, the costs of reviewing ESI can be overwhelming if it is treated the same way as paper documents. But Hamilton and Losey seek to handle ESI differently.
“The ESI advantage is that electronic files are searchable, while paper is not,” Hamilton said, “and it’s important that litigators, new and old, learn the tools to do it properly.”
If ESI is handled incorrectly, the case will slow down and costs will go up, said Losey, who became interested in e-discovery through the work of his father, Ralph Losey (JD 79).
Adam Losey was a student in Hamilton’s first e-discovery class at UF Law and has since become a recognized expert in the field. He now teaches e-discovery as an adjunct professor at Columbia University.
Losey emphasized the importance of ESI during the pre-trial discovery conference, also known as the 26(f) conference as it is governed by Rule 26 of Federal Civil Procedure.
“If you handle this conference wrong,” Losey said, “you do your client a great disservice.”
A common mistake during the 26(f) conference is miscommunication between the parties of the lawsuit in how to share, preserve and manage the ESI in the case.
“Frequently, the attorneys don’t have the language or understanding necessary to have a productive 26(f) conference,” Hamilton said.
Hamilton and Losey agree that these mistakes lead to increases in costs that would otherwise be unnecessary.
“Our end goal was to help litigators win, reduce costs and speed up litigation,” Hamilton said.
UF Law was one of the first law schools to offer a regular course in e-discovery, taught by Hamilton, so that students may study the emerging field within litigation. Ralph Losey offers an online e-discovery course for UF Law students in the summer.
“It was appropriate that we held this conference at UF Law because UF has been at the cutting edge of e-discovery for years,” Hamilton said.