by Jerold S Solovy and Robert L Byman

Neither a comet nor a dramatic climatic change killed off the dinosaurs. They perished because they could not adapt to the digital age, which changes everything about the way businesses create and retain documents. Our adaptation to those changes will determine whether we legal tyrannosaurs will survive.

Digital Oops
Email has become ubiquitous. It is fast, it is easy, it is informal, it is efficient. Email has eliminated the need to gather around the water cooler. Heard a good joke? Put it in an email and send it to everyone you know, who in turn will send it to everyone they know.

But a joke that once was merely in bad taste, now exchanged via email, can have cataclysmic results. Ask Chevron Corp., which paid more than $2 million to four female employees to settle their claim of sexual harassment when an email zapped through the company’s system with the title “25 Reasons Beer is Better than Women”.

And unlike an ephemeral water cooler chat, digital dirty laundry may be as hard to get rid of as a Florida timeshare condo. “Delete” does not mean “delete”. In English, “delete means “erase, obliterate, remove, etc.” But in computer, “delete” means “available to write over”. When you enter data on a computer, the computer assigns some segment of its hard drive to store the ones and zeros that represent that data. And that data stays right there until you write something over it in the same space. When you hit the delete key on your computer, you merely allow that data to be overwritten, nothing more. Even if you enter new data immediately after “deleting” old data, the computer may or may not assign the new information to the specific location you have “deleted”.

Some companies and lawyers are starting to get wise to these potential problems and have implemented programs that actually do erase old files. But that is not without its own peril – where destruction of files is driven by fear of litigation rather than legitimate business considerations, you will have to defend against charges of spoliation and deal with adverse inferences.

Digital Drafts
In the paper age, the retention of drafts was a storage issue – when the folder got too thick, the drafts were tossed.

The digital age changes everything. Drafts are easier to create, so there likely are more of them; drafts are easy to share with co-workers, so there are probably more drafts with each person’s input; drafts are easy to save; conversely they are also easy to overwrite.

So the anal-retentive will save every draft. But the literati (especially those who have been through litigation) will never retain a draft. They will routinely overwrite the earlier work so that only the final version exists.

Ah, but maybe not. Beware the “undo” icon. Most word processing software allows you with a mouse click to restore whatever it is that you just did that you decided you should not have done, with buffers that save 10 or so previous “undos” while you are working on the document.

Try this. Compose a letter (in WordPerfect 6.1). “Dear Madam: I know I should not have been driving after having six martinis, but the accident is your fault because you should not have entered the intersection after the light was yellow. Sincerely,…”

Now think better of it. Delete the stuff about the martinis, print the final letter, save the file as “Snottyletter.wpd” and shut down your computer. Later after opposing counsel has demanded the electronic file for your letter, boot up, and open the document. Click on “undo” twice. Uh-oh. Six martinis just reappeared. Snottyletter.wpd just became Smokinggun.wpd.

Spreadsheets
So you must always ask for electronic files in discovery – and even more so to get your adversary’s spreadsheets. The electronic file will help you understand the spreadsheet by showing you the formulas for the data entry. More important, having the information in electronic form will allow you to manipulate the data to make it more usable.

Suppose you are given a hard copy printout of a spreadsheet organized in alphabetical sequence by customer that consists of hundreds of pages of sale data, breaking out the items purchased, the amount of the sale, the date of the order, the date of the shipment, the date that payments were made and so forth. The only way your adversary ever used the spreadsheet was in the exact hard copy form produced.

But in your lawsuit, you only care about #10 widgets, not any of the other purchases recorded. The spreadsheet is 300 hundred pages with 100 sales per page, but you only give a hoot about roughly 200 entries, buried in the universe.

With the hard copy, you can have an accountant, at a mere $400 an hour, spend a week to dig out the data you care about. Or you can demand the electronic file, and with a keystroke, reorder the data by product, creating the concise trial exhibit you need from your adversary’s own data in about five minutes.

We would like to say more – indeed we have in the drafts of this article – about the exciting but frightening world of digital discovery. But we do not have the space here to say everything we would like. We have had to delete whole sections of this article.

If you would like to see more, serve a request to produce on us, get the electronic file, and hit “undo”.

This article, which was written by Jerold S Solovy and Robert L Byman, originally appeared in the May 26, 2000 edition of the Lawyers Weekly. It is reprinted with permission of the authors. Jerold S Solovy and Robert L Byman are Fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. Mr. Solovy, the firm’s Co-Chairman and a past Chair of the Discovery and Trial Practice Committees of the American Bar Association.

This article was published in the August 2000 issue of BarTalk. © 2000 The Canadian Bar Association. All rights reserved.