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OP I N ION BY DERA J. NEVIN TECH SUPPORT Taming e-discovery anxiety Electronic evidence obligations require new knowledge and skill sets but cannot be avoided. could become evidence, or until our laws change to permit us to ignore this, e-dis- covery is here to stay. While some busi- nesses and individuals have not moved to computer-based record-keeping systems, this is the exception, not the rule. The emerging e-discovery case law bears this out: personal injury, labour, criminal, and family law matters are resulting in leading jurisprudence on the admissibility of evi- dence from social networking sites, and many decisions regarding production of electronic records emerge from disputes where the amount at issue is modest. I recently read a statistic that the world W hat is bother- some to many litigators is that our clients, whether com- panies or individuals, simply refuse to stop using computers. With increasing frequency, the best evidence — the evidence required to prove or defend our clients' cases — has been generated by a computer and remains there, in some format. The widespread use of computers and related devices (you know the ones: cellphones, BlackBerrys, things that access Facebook, and now Facebook e-mail, etc.) has led to something of an anxiety epi- demic among lawyers: e-discovery. We know e-discovery is both new and not new. It is not new because it is just the discovery of evidence relevant to liti- gation, although the evidence has been electronically generated and stored. But it is new because this evidence is in a whole new category that we are not really sure what to do with and that our evidence laws and court rules have only started to adapt to. And litigators on the front lines — who must work with this evi- dence in productions, discoveries, pretrial proceedings, and as trial exhibits — often struggle to manage it with outdated rules and tools, and few precedents to follow. For many litigators, e-discovery is a lot like being required to peel an onion: one passes through layer after layer, crying the whole time. So some litigators simply wish the whole issue would blow over. Others relegate it to "the big case," assuming that it applies only to large-scale class actions or big fraud or product liability cases, and ignore it because they don't have those kinds of cases in their practice. But the reality is until our clients stop using computers to generate material that 18 JAN UARY 2011 www. CANADIAN Lawye rmag.com creates an additional five exabytes of data every 48 hours. Five exabytes is the equivalent of 37 times the amount of information in the Library of Congress. While a significant portion of this data is downloaded episodes of Glee or Lady Gaga videos, some proportion of that five exabytes, however small, could be the evi- dence required to prove your client's case. As litigators, we ignore relevant evi- dence at our peril. The challenge of e-dis- covery is to identify all relevant informa- tion and obtain it in a forensically sound format so it can be used as evidence at trial. Understood this way, e-discovery is best understood as a branch of evidence law rather than a question of procedure. E-discovery obligations require new knowledge and skill sets for practitioners. I distinguish three discrete but related components: e-discovery law, e-discovery procedure, and e-discovery operations. E-discovery law entails the know- ledge of and ability to apply the emerging statute and case law regarding the client's obligations to preserve and disclose infor- mation created in electronic formats. This MATT DAlEy