Before the advent of econtent, the process would have started with a paper memo and then required searching through boxes and boxes of paper documents to pull the relevant information together along with any appropriate legal information, like applicable case law.
As the profession increasingly moves to electronic documentation, the same objectives apply, but today an attorney working on a case typically sends a junior associate or paralegal an electronic memo directing him to search for all documentation relevant to a given case. The objective remains the same, but now the associate needs to search not only through the corporate electronic files—as well as any paper files that haven't been converted to a digital format—but also through econtent that resides on hard drives and email systems that are on any number of desktops, removable media, and fileservers. This means that law firms need methods of archiving and tracking all of this digital material, as well as the ability to append other information to it as necessary.
As before, relevant case law also must be associated with case files, and again, this increasingly is done via econtent rather than through volumes of printed law books. LexisNexis tools, for example, enable attorneys and their associates to conduct searches simultaneously via its Total Search product, which examines internal econtent as well as existing pleadings, depositions, memos, deal documents and motions, cases, codes, news and businesses sources, as well as Shepard's Citations, which documents legal proceedings, including the latest rulings, amendments, and opinions.
Joe Swimmer, a former practicing attorney and director of LexisNexis Total Search who has witnessed first-hand the growth of econtent within the legal profession, says econtent usage is expanding rapidly as the profession increasingly shifts to digital documentation and away from paper. "You have to have validation that the statute cited is still good law," Swimmer says. "Even if the law is still valid, the attorney may need legal opinions that question certain sections of the law." Undoubtedly, the ability to keep up-to-date via digital content makes this process easier and more organized, but as many law firms are still transitioning from traditional paper-driven processes to digital ones, many challenges remain.
Ediscovery on the Rise
The need for such information often is driven by "ediscovery" requests by opposing sides in a court case. Discovery is a formal investigation—governed by court rules—that is conducted before trial. Discovery allows one party to question other parties, and sometimes witnesses. It also allows one party to force the others to produce requested documents or other physical evidence.
"The hottest areas in legal seminars are document management and ediscovery," according to Charlene Brownlee, senior counsel and practice leader of the records management solutions practice group at the international law firm Fulbright & Jaworski. "Outlook/Lotus Notes is not a records management system," she says, emphasizing that companies must define what records are before they begin to properly mange them.
Two-thirds of companies are tracking their electronic communications as a result of Sarbanes-Oxley regulation and subsequent court actions taken against firms that have purposefully or unwittingly destroyed email and related edocuments, according to Brownlee.
Yet there are still plenty of companies and law firms that have yet to install a full electronic discovery system, says Brad Harris, director of product manager for Fios, Inc., a company that provides ediscovery services. He says that these systems need to identify not only the relevant edocumentation, but also the chain of custody, a record of edocumentation viewers, and prevent inadvertent destruction. Negligent destruction of edocuments, particularly emails, can draw stiff penalties from the courts.
"Typically, companies have had a ‘fire, ready, aim'-type of approach to ediscovery," Harris says. "That leads to a messy fire-fight when you have to locate something. By having an automated system in place, you know better where relevant documentation might reside." The need for such systems has grown so much that some firms, including Fulbright, have dedicated divisions that specialize in this part of the legal profession. There are also a growing number of private companies that specialize in ediscovery that work directly for corporations, under contract to law firms, or both.
Fulbright & Jaworski was one of 29 legal organizations to launch the Electronic Discovery Reference Model Project in mid-June. Formed to address inconsistencies in the electronic discovery market, the project's primary goal is to place a documented reference model in the public domain by May 25, 2006. The Electronic Discovery Reference Model (EDRM) will be designed to provide a common, flexible, and extensible framework for the development, selection, evaluation, and use of electronic discovery products and services.