Venyu Blog

Before the digital age caught up with the law, the concept of “discovery” was not unlike a well-played, albeit pre-determined game of poker (e.g. if you show me your hand I might show you mine or I might bluff long enough so you’ll show them to me anyway; and if you’re not willing to show me what cards you’re holding I’ll have the judge subpoena them anyway).

Now that the reverse is true and the law has caught up with digital technology, it’s not cards we’re talking about: it’s files or databases or emails or anything digital that might influence a jury to see your evidence in the most positive light.

Thanks to ever-growing email volumes and the litigious society we live in, email archiving and its close cousin, E-discovery is becoming a must-have technology. In fact, analyst firm ESG reports that email archiving-as-a-service has grown 250% over the past 3 years.

Just this week Mass High Tech – using the backdrop of the BP Deepwater Horizons saga as its framework – placed the challenges of e-discovery’s rapid maturity in the legal profession as parties to these lawsuits begin to test its parameters, as well as its possibilities to make their case in open court.

The centerpiece of the story – finding a way to not only narrow the scope of digital information required of the e-discovery process but also “rein in” the costs associated with collecting, analyzing and storing it all – invokes the entire judicial process from attorneys, the courts and even IT pros are being called on to decide what data should be shared, and what should be left, ostensibly, on the plaintiff or defendant’s hard drive. This includes e-mail, documents stored on thumb drives, websites, information on copier hard drives, archives of instant messages – every digitally-generated communiqué is fair game.

Shelagh Michaud, an attorney with the firm CullenCollimore PLLC in Nashua, N.H. who was interviewed for the story, makes the observation that even a civil case involving a small business can involve millions of discoverable documents. “We are used to going after everything. E-discovery forces us to be more choosy,” To narrow the scope, opposing attorneys can agree early in the discovery process on things like keyword search terms and date ranges to be used, she says.  

According to the article, wading through all of this digital documentation does have some clear advantages over paper-only discovery, for example, with e-discovery materials can be ported into a database and made available to law clerks involved in the case via a web browser, enabling more rapid precise search and sorting capabilities. Along those same lines instead of producing paper documents at trials, firms can bring their database into the courtroom on a laptop and display e-mail, contracts or other files on screens for the jury and judge to see. Specific passages or sections of a document can be enlarged or highlighted in real-time and documents can be juxtaposed for comparison, a technique particularly helpful during cross-examination.

The bottom line is that when it comes to the law circa 21^st century virtually no communication between you, your clients, customers, employees, investors, agents in fact anyone at all is off-limits when it comes to the courts. Investing in an email archiving solution now enables you and your company to respond appropriately and completely if, as a party to a lawsuit, you’re ever subpoenaed and required to show your hand in a way that could irreparably damage your reputation and financially compromise your company.