As I mentioned Monday, I had the opportunity to attend ABA Techshow, one of the premier technology and the law conferences around. 

E-Discovery (or "Electronic Discovery") continues to be a hot topic at such conferences.

(Discovery is the process by which parties to a lawsuit exchange and receive information before a trial.  The most common forms of discovery are interrogatories — exchanging questions — and requests for production of documents.  E-discovery is the subset of just looking at electronically stored information).

Here’s why employers need to know about the developments in e-discovery:

Among all the speakers, it was universally agreed that "searches" — or the concept that you can take electronic data and run different types of inquiries into what is contained there — will only grow over the next decade. 


Because the amount of data that is being produced by individuals each year is staggering. 107 trillion e-mails were sent worldwide in 2010.  25 billion tweets were sent during that time too.  As the speakers said at the seminar, there is too much data to review manually anymore.

Which means that understanding where all of a company’s data resides is crucial to being able to defend your company against an employment discrimination charge and being able to preserve and collect that information if need be.  Companies must be able to search their data if need be. 

A company’s IT staff (or outside experts) thus plays a starring role in that effort.  No longer can IT staff simply put on their headphones to write code. They must be willing participants in the company’s efforts to defend itself in a lawsuit.  While the IT staff may not be the most important witness, it will certainly be critical. 

Employers now may want to consider informal training to some IT staff about litigation possibilities before a lawsuit is even filed. That way, when a lawsuit is filed, it’ll be easier to find such information and know the tasks that need to be done to either preserve such information or proceed with business as usual.

For in-house attorneys, it is also important to understand that courts are not going to permit stone-walling on this.  Indeed, a recent federal case highlighted at the seminar (Seven Seas Cruises v. Ships Leisure Sam (S.D. Fl. 2011) (download here)) illustrates that courts are willing to impose sanctions if the parties do not cooperate and try to work things out themselves.