E-Discovery

Milwaukee E-Discovery Lawyer

Over the last decade, courts and parties have come to recognize that many “documents” exist only in electronic format, such as data on desktops, laptops, i-pads, thumb drives, CD-ROMS, DVDs, smart phones and other media that can store information electronically. Court rules now refer to these documents as “electronically stored information” or “ESI.”

There are a number of reasons for undertaking discovery of ESI. For instance, paper copies of e-mail communications will not show all of the data that an e-mail produced in native format will show, such as the e-mail’s additional recipients. Persons communicating by e-mail tend to treat e-mail communications like casual conversation and may write things that they would not otherwise commit to paper. E-mails may be transmitted, forwarded once or many times or stored on servers. Electronic copies may exist even though the original sender and recipient have deleted their copies and shredded all paper copies.

Attorney Robert Corris has been on the cutting edge of e-discovery. In addition to writing and speaking on e-discovery, he has been involved in numerous cases in which he has conducted e-discovery, advised his clients on their duties with respect to e-discovery, negotiated search protocols to protect his clients’ interests and limited the scope of searches of their computers.

He often represents employees or small businesses in the types of cases where e-discovery is regularly sought, and he advocates for proportionality in the scope and cost of e-discovery.

If you have a business litigation  dispute that may involve e-discovery issues, call the Corris Law Office today at (414) 272-8000, send us a fax (414) 755-7050 or an e-mail (rcorris@corrislaw.com), or use our convenient contact form. We represent business law clients throughout Southeastern Wisconsin, including Milwaukee, Hartland, Waukesha and surrounding areas. We pledge prompt and personal attention to your case and look forward to working with you to solve your e-discovery issues.

Experience with E-Discovery

When someone “deletes” information on a computer, the information may still be located on the hard drive until the deleted information is overwritten. Temporary files or data in file slack may be retrievable even though the user believes the data has been deleted.

When a person creates a document and saves it, the computer allocates it to space on the computer. The space the computer chooses is random. The computer knows where to look for the document when a person goes to open the document because the computer has created a pointer that tells the computer where the document is.

When a person deletes a document, the computer does not actually remove the document; it merely deletes the pointer to the document. The document remains stored in unallocated space on the hard drive until the computer overwrites it with new data. As the computer overwrites data stored in unallocated space, it may randomly “remove” all of the stored data or only bits of it.

Computers also save data “behind the scenes,” as temporary files. A search for temporary files can recover portions of a document that was deleted, and a link can tell a searcher that a document once existed. A search of the responding party’s computer can uncover deleted files, file and directory information about dates of revision, information regarding who accessed the files and when, and similar information not generally available through discovery of paper documents alone.

E-discovery has its own unique issues. The cost of e-discovery can be quite significant and requires a balancing between the relative importance of the sought-after evidence in comparison to the cost of production. An important question is whether the request imposes an undue burden or expense on the producing party. As new operating systems or versions of programs come on the market, older  ESI can become inaccessible and retrievable only with extraordinary effort and expense.

Staying on the Cutting Edge

New cases on e-discovery issue all the time. Some forensic consulting firms publish newsletters with summaries of the latest decisions. In order to search a computer without changing data or metadata (metadata is often important data about data hidden in the background), a forensic consultant will make a forensic copy, or “mirror” image, of the computer using programs that allow the mirror image to be searched without altering any data. Parties are under a duty to preserve evidence, including ESI, whenever litigation is reasonably anticipated, and a party may retain a forensic consultant to create mirror images of storage devices to assist the party in complying with its duty to preserve evidence.  Forensic consultants also help draft the protocols and search terms for later searching the mirror images.

How We Can Help You

A client must be advised and take steps to preserve ESI. Sanctions for destroying ESI can be quite severe, including an “adverse inference instruction” to the effect that the missing evidence is evidence that a party would surely have introduced had it been helpful, permitting an inference that the evidence would instead have helped his opponent.

Federal trial level judges in the Southern District of New York have issued a series of landmark decisions addressing e-discovery. Among other things, these decisions have set forth:

  • A seven-factor test for deciding whether e-discovery will impose undue burden or expense such that the cost of production should be shifted to the requesting party.
  • Whether information is accessible or inaccessible.
  • Respective responsibilities of client and counsel to preserve electronic data once a party reasonably anticipates litigation.
  • Whether metadata is an integral part of an electronic record.

Both the Federal and Wisconsin Rules of Civil Procedure have been amended specifically to address e-discovery. Both of these amended rules require that the parties’ attorneys “meet and confer” to discuss e-discovery issues.

Contact the Corris Law Office Today

Attorney Robert Corris is an experienced business litigator as well as a speaker and author on a variety of business law topics, including Wisconsin e-discovery issues. He is ready to discuss solutions to your legal problems today.

The Corris Law Office serves business law clients, including individuals, dealing with e-discovery disputes throughout Southeastern Wisconsin, including Milwaukee, Hartland, Waukesha and surrounding areas. To learn more, call us at (414) 272-8000, send us a fax (414) 755-7050 or an e-mail (rcorris@corrislaw.com), or use our convenient contact form. We pledge prompt and personal attention to your electronic discovery issues and look forward to working with you.