Most attorneys create several new documents on their personal computer every day - and lose count of the number of e-mails they've sent by noon. Those of us who work in the legal realm seem to love all things electronic.

What lawyers apparently do not love is electronic discovery, more commonly known as e-discovery.

According to the American College of Trial Lawyers Task Force on Discovery's interim report, released in August 2008, 87 percent of lawyers surveyed believe that e-discovery increases the cost of litigation; 77 percent say that the courts do not understand the issues involved in e-discovery; and 63 percent say that e-discovery is being abused by counsel.

Despite that, 66 percent of attorneys responded that the amendments to the Federal Rules of Civil Procedure (FCRP), effective in 2006, have the potential to allow efficient and cost-efficient e-discovery.

Nearly all of the technologies discussed in this space have been optional items, things to try if you are looking for new and different professional outlets. A working knowledge of e-discovery procedures and issues, however, is increasingly essential to the practice of law.

Although more attorneys are becoming aware of the challenges involved in e-discovery, not all the entities involved in a case always share that awareness. Lawyers are sandwiched between two legal participants for whom e-discovery may be a new concept - the clients and the courts. It is in negotiating the process with those essential elements of any case where much of the frustration with e-discovery brews.

Knowing that e-discovery waters can be choppy is key to a gentler ride. That is often accomplished by constant communication and using procedures already in place to pre-empt common problems.

Educate the client and yourself

Complex e-discovery issues are generally more common in cases involving entities that are themselves sophisticated and complex. In many instances, corporate parties that anticipate some litigation throughout the course of business are at least minimally prepared for e-discovery. Such clients make efforts to save and catalog their electronic data instead of destroying it (as many companies have done in order to save computer space), and those that do are not surprised when computer data, including e-mails and instant messages, become an issue during litigation.

But that is not always the case. Parties are often taken by surprise as to the cost and difficulty involved in extracting requested electronic data.

Mitchell Banas Jr., a partner at Jaeckle Fleischmann & Mugel LLP, says that the best way to deal with the challenges of e-discovery is to be up front with the client.

"Educate the client on the challenges e-discovery presents," advises Banas, who chairs Jaeckle's e-discovery and records-management group. "Those challenges can increase both hard costs and soft costs exponentially, for plaintiffs and defendants alike."

Attorneys should prepare clients for the costs and the possibility of unexpected requests to come. The law and procedure surrounding e-discovery are still developing, leading to uncertainty and argument along the way.

"E-discovery has the capacity to become a sideshow, an end in itself. It presents the ability - for those who so desire - to start litigating the litigation rather than the merits," Banas says. "Because the law of e-discovery is still in its infancy, it lends itself to issue spotting and creation - which is what lawyers are trained to do and do best."

Neither attorneys nor the courts always make it easy to achieve effective and efficient e-discovery, as many attorneys give into the urge to simply ask for everything available instead of what is relevant. This can make it particularly difficult for the party being asked to produce what's requested, even when they make every effort to cooperate.

"Opponents are more likely to try to leverage even token discovery lapses into sanctions and even victory on the merits," Banas notes. "The courts, too, seem to place higher burdens on producing parties when it comes to e-discovery, (based) on the oversimplified notion that it is easier to produce all relevant documents. While they may be easier to analyze, they're not necessarily easier to access or identify."

In addition to being aware of possible struggles ahead, Banas also suggests that lawyers make an effort to learn how electronic items are discovered using typical system architectures and processes, including archiving, backup and other storage mechanics and file formats.

To further ease the process, lawyers should cultivate a relationship with the client's information-technology department, which often has the best working knowledge of what data the client has and how to retrieve it.

Working with opposing counsel, the courts

The judge assigned to hear a case involving extensive e-discovery may be well-informed on developments regarding electronic data, or she or he may have never sent an e-mail or used a computer. Attorneys should not expect that a judge will manage e-discovery issues, but take the initiative themselves to ensure that the process is governed according to the client's best interest.

When in federal court, making use of the amendments to the FRCP is an easy and obvious way to negotiate the thicket, especially by participating in a Rule 26(f) conference.

Originally implemented in 1980 to allow parties in litigation and the court to confer in the very early stages of a case to develop a joint discovery plan, Rule 26 was amended in 2006 to address concerns about e-discovery. Yet many attorneys still fail to take advantage of the conferencing opportunity the rule encourages and allow issues to linger, leading to additional motions, increased costs, and delayed resolution.

Before meeting with opposing counsel, attorneys should have a candid conversation with the client about needs and costs. Much of the expense of e-discovery stems from accessing backup tapes and files. Decide what files are needed and at what cost the parties are willing to get them.

Substantial costs also arise from the review of documents, a process so tedious and time-consuming that some have suggested outsourcing such work to other countries, namely India, instead of using the costly contract lawyers that many large firms make use of.

At the outset of any case, attorneys should hammer out limitations on the scope of electronic preservation expected of the parties as well as limitations on the scope of what can be discovered, including keyword and time-period limits, which will also curb review costs. Additionally, the parties should quickly settle what format electronic documents will be provided in.

Moreover, since e-discovery often inadvertently produces privileged materials, lawyers may want to put "claw-back" agreements into place in order to reclaim materials that opposing counsel should not have access to.

In extreme situations, the appointment of an outside e-discovery special master can be helpful. Though hiring an outside adviser may seem like an unnecessary cost, it may actually be more time- and cost-efficient for both the client and court.

When procedures are in place and docketed by the courts, later controversy can be easily circumvented.

New York state has implemented no specific rules or procedures pertaining to e-discovery, and instead relies on the standard Civil Practice Law & Rules, so mind the proper decorum. Although the 26(f) conference is a creature of the federal courts, it can be easily adapted at other levels - with that court's permission and knowledge, of course.

Caroline Brancatella is a law clerk for a federal judge in Philadelphia, Pa. A member of the New York state bar, she can be reached at cbrancatella@gmail.com.