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Digging for e-data: you won't find `electronic evidence' and `e-discovery' in the latest edition of Black's Law Dictionary. Knowing what they are and how to use them may save your client's case, and your practice.

Article Excerpt
Plaintiff lawyers with busy trial practices often operate in a head-down, shoulder-to-the-grindstone fashion. Managing a heavy caseload plus an office can take so much energy and time that keeping up with litigation trends may seem impossible.

If this sounds like you, you probably haven't examined both the promise and the peril that electronic evidence can hold for your clients' cases: You may be setting them up for a fall and putting yourself at risk for a malpractice claim.

In 2001, businesses in North America sent an estimated 2.5 trillion e-mail messages, expected to grow to 3.25 trillion in 2002. (1) Ninety-three percent of all business documents are created electronically, (2) and most are never printed. (3)

But that doesn't mean copies aren't being made. Almost all businesses and many individuals have learned the importance of backing up electronic data regularly--even daily. The result: copies upon copies of electronic evidence that may be relevant in litigation.

Let's say you suspect a defendant has electronic data that could help your client's case. How do you get access to it? If you don't know, you may miss out on critical evidence. Or let's say your client receives a request to produce electronic data that is clearly discoverable. (4) How do you proceed?

What if your client routinely deletes or writes over data? How do you protect the client from committing spoliation by unwittingly erasing or destroying electronic evidence relevant to pending litigation--and consequently risking sanctions, including dismissal of the complaint or default judgment on a counterclaim?

Heads up: It's time to learn what you need to know about electronic evidence to protect your clients' interests and avoid the potentially catastrophic results of ignorance and inaction.

Getting the e-goods

E-discovery can produce a treasure trove of evidence. The discovery of just one e-mail message can transform a contentious legal battle into settlement discussions.

For example, in Linnen v. A.H. Robins Co., the family of a woman who died after taking the diet pill combination of the prescription drugs fenfluramine and phentermine (known as fen-phen) sued the drugs' makers. The plaintiffs claimed the drugs, taken in combination,...

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