The facts of modern life are clear.  Information is created, exchanged, and stored not in filing cabinets, but rather electronically. Conventional documents originate as computer files.  E-mail and instant messaging (IM) with attached documents and photos are replacing telephone calls, faxes and snail mail.  All are passing through digital systems and in some instances remaining stored without user awareness.  When there are phone calls, messages are often recorded not on tapes but as digital code.  Commercial activities are transacted using computer-based business processes, and it is forseeable that one day soon cash will go the way of dividable pieces-of-eight silver coins.

Electronically stored information (ESI) is commonplace in our personal lives and in the operation of businesses, public entities, and private organizations. In recent years discovery involving ESI became a common event.  No longer is it the oddity my law school professors viewed it to be 17 years ago when I raised an issue about VAX electronic mail during a NITA litigation simulation course.  Word-processed documents, spreadsheets, e-mail, cell phone photos with correlating abbreviated text messsages and countless other electronically stored information is now the norm in business, and it impacts the practice of law.

Discovery of ESI today impacts the outcome of civil trials and many criminal cases. In some matters, ESI does not raise any issue at all as all relevant documents can be printed and exchanged on paper.  In other cases intense disputes arise over the scope of discovery and the form in which ESI is produced.  Issues arise as to whether inadvertent production of ESI will lead to waiver of attorney–client privilege or work-product protection.  Shifting costs of producing to the requesting party is a frequent subject of motion practice today.  Spoilation allegations are made, some with no merit, because many attorneys are far beyond their ken dealing with the underlying technology that stored or transmitted the ESI at the heart of the litigation.

What do you do if the digital files you requested are in a format that is not readily usable?   Sometimes technology issues are not recognized by litigators until far into the pretrial process when one side accuses  the other of spoliation because routine digital file management practices remained in place after the complaint was filed, resulting in the deletion of relevant computer files or associated metadata.

Such disputes and the related waste of client resources are clearly avoidable in the earliest stages of litigation, and even before your client is sued.  "Proper plannning preventing poor perfomance" is as true in the age of e-discovery as it was for Sun Tzu.  Do you know how to ensure your client's corporation is prepared for the art of legal war in the age of ESI?