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Conference examines electronic discovery legal issues

by Ian Fisher
Law Student Writer/ 2L

Ralph Losey

E-discovery writer Ralph Losey addresses those in attendence at the Sedona E-Discovery Evening held at the UF Levin College of Law.

It's time for the legal profession to move into the 21st century and for law students to consider a new and rapidly expanding field.

A distinguished group of experts spoke about the importance of electronic discovery on Oct. 28, at the "E-Discovery Evening," which was co-sponsored by The Sedona Conference and the Levin College of Law.

“The Levin College of Law is one of the first law schools in the nation to offer a course in what is being called ‘E-Discovery,’” said UF Law Dean Robert Jerry. “We’re very pleased that, thanks to Adjunct Professor Bill Hamilton, we are also now the first to co-sponsor a conference on the topic with the very well-respected Sedona Conference.”

At the conference, noted e-discovery writer Ralph Losey stressed how different the world has become with modern technology and how lawyers are doing a poor job adapting.

"We've been graduating people out of law school who are prepared to practice law in the 19th century," said Losey, a shareholder at Akerman Senterfitt. "They're prepared to work with Abe Lincoln, who had a partner and an associate. They went through papers, and they went to a trial courtroom."

Law students are still generally trained to review a limited number of documents and build a case around what is given to them. But today's cases can have millions of electronic documents in a variety of formats that have to be reviewed, Losey said.

"You're not trained to deal with 5 million documents. Cases now – with just 10 witnesses in a corporation – they're going to have millions of documents," Losey said. "You cannot look at each document. That's the real world; it's not the Abe Lincoln world of just having a few paper documents." Patrick Oot, Verizon's director of electronic discovery and senior counsel, gave the example of Verizon buying out MCI to show how complicated e-discovery issues can be.

There were over 2.4 million documents (1.3 terabytes of data) that had to be reviewed in that case, Oot said.

This required 115 attorneys at one firm doing privilege review and 110 attorneys at another firm doing timeline review. It took four months with attorneys working every day for 16 hours a day to finish the review, Oot said. Overall, just the review process cost over $13.5 million for outside counsel alone. Going forward, technological advances will make searching the documents more efficient.

Oot recently read an article that said there were only about 200 lawyers nationwide that can handle e-discovery issues well, but that number needs to grow quickly.

"As our general counsel put it when we first started this [e-discovery] group, he said, ‘This is the only practice within the company that I actually see growing,'" Oot said. "Federal regulatory, litigation, antitrust, intellectual property – he sees those groups shrinking where we're hiring people all the time."

With the e-discovery field growing so rapidly, The Sedona Conference, a non-profit, non-partisan law and policy think-tank, and an international leader in e-discovery best practices, has been at the forefront of establishing best practices in the field. One of the principles The Sedona Conference stands for is cooperation with opposing counsel on discovery issues.

"You want to be adversarial, obviously, but at the same time, I don't think you want to be adversarial on the issues pertaining to what information is available," said Joseph P. Guglielmo, a plaintiff e-discovery expert for Whaley, Drake & Kallas.

Guglielmo emphasized not asking for something from opposing counsel that you would not be comfortable producing.

Ken Withers, a distinguished e-discovery writer with The Sedona Conference, moderated the event. He has been working with e-discovery since 1987, he said.

In this time, two events have made discovery much more important, Withers said.

First, the Federal Rules of Civil Procedure were amended in 1983 and 1993 to allow more discovery, Withers said.

"The number of cases that actually went to trial was decreasing, and it's now less than three percent of all cases filed," he said. "Discovery went from being a means to an end – getting to trial – to being the end in and of itself. The stakes of discovery where thereby raised."

Second, the desktop computer has led to the exponential growth in the amount of data in the world, Withers said.

The Honorable David Baker, a United States Magistrate for the Middle District of Florida, spoke about e-discovery from the judicial perspective.

All speakers agreed that this is the future of discovery and students should try to learn about it. Bill Hamilton, a Holland & Knight e-discovery expert who organized this event, teaches an e-discovery class – one of the first in the country – at the UF Levin College of Law.

“E-discovery is an exercise in judgment,” Hamilton said. “There are few hard and fast bright lines. When you’re practicing as a technology counsel or e-discovery counsel, you’re making decisions all the time. Those decisions require judgment; you have to have informed judgment. What we’re going to do is watch the panel exercising their informed judgment. And that judgment can be challenged. We expect it to be challenged from the audience.”

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