By MATT CHANDLER
Buffalo Law Journal

 

In the 1993 legal thriller "The Firm," Tom Cruise portrays a young, idealistic lawyer, Mitch McDeere, who uncovers some unsavory behavior at his law firm and decides to go Perry Mason and bring down the bad guys.

 

In a pivotal scene of the film, Cruise and his assistant lug box after box of records and files out of the office, risking life and limb to photocopy thousands of documents and copy countless computer files he hopes will vindicate him and topple the bad guys.

 

If only poor Mitch was born a decade later, electronic discovery would have made his job so much easier and he could have saved a whole lot of time, money and trees.

 

E-discovery, which involves the collection and sharing of electronic files and evidence between parties in litigation, is still gaining traction in Western New York.

 

While most midsized and large firms locally are embracing this technological tool as a way to more efficiently, more effectively serve clients and prevail in litigation, there is a wide disparity when it comes to the manpower and financial resources firms are able to devote to e-discovery.

 

Being the largest law firm in Buffalo helps Hodgson Russ LLP to be well ahead of the curve, says partner Jody Galvin.

 

"In our litigation group, we have two full-time litigation technology support people who assist our lawyers in talking to clients from the very beginning of the case about e-discovery issues," she said.

 

While the resources large firms such as hers enjoy could give them an advantage over smaller firms, she sees the majority of lawyers taking a different approach - sharing information and learning the e-discovery ropes together. "Most lawyers are relatively cooperative with this type of information and have an understanding that other firms may have a limited understanding or limited resources to gather a universe of information," she said.

 

While she sees e-discovery as a more efficient way of collecting, uncovering and managing documents, Galvin believes there are downsides to the advances as well.

 

"I think that e-discovery has become a barrier to entry to the courts in some ways ... for smaller corporate clients, particularly for a matter where the amount at stake may not justify the associated expenses," she said.

 

Companies in the business of coordinating e-discovery support services for law firms say that the efficiency and organization of e-discovery offers a cost savings.

 

"It's definitely a money-saver, if you look at it more from a business approach rather than a litigation approach," said Greg Gegenfurtner, vice president of legal services for Avalon Document Services.

 

Galvin's not convinced of that.

 

"I think there can be some cost savings in document review, but ultimately, it's probably almost equal, because you still have to have a level of supervision over whatever you are doing," she said.

 

The cost of working with all these electronic files can vary widely, said John Jablonski, a partner with Goldberg Segalla LLP. That makes it difficult to budget for e-dicovery projects, he said.

 

"For example, we recently did a project that had 79 gigabytes of information, roughly 400,000 pages," he said. "We priced it out with four separate vendors, and the highest price we received was $89,000 and the lowest price we received was $19,000."

 

"Depending on each firm and what they have in-house, the cost can vary," says Gegenfurtner.

 

He said he sees a mix of reactions throughout the legal community to software applications and other technological aids that help lawyers to collect and process electronic data.

 

"They (lawyers) usually say, ‘This is interesting, and sooner or later I'm going to have to learn this,' but until it really falls into their lap, they usually don't address it," he said. Eventually, he sees e-discovery merging in with every other part of litigation discovery.

 

"There is just too much that human beings are doing on a daily basis that involves electronic communication," Gegenfurtner said. "From 2006 until the end of time, litigation is going to continue to be more electronically driven, and paper is eventually going to fall by the wayside."

 

John Schmidt Jr., a partner at Phillips Lytle LLP who focuses his practice on commercial litigation, said the federal rules defining e-discovery, revised in 2006, have clarified much of the mystique that existed earlier.

 

"When e-discovery started to become an issue, the big concern for law firms and clients was, how much was it going to cost?" Schmidt said. "Some of the leading theses early on gave the impression that e-discovery was going to be the tail that wagged the dog of every case, and since those rules took effect, that really hasn't been the case."

 

Schmidt says he is taking fewer depositions since e-discovery took off because clients and opposing parties are forced to disclose much more information early on in their cases than they were before.

 

"I think it ends up resulting in more efficient resolutions earlier on in the litigation process," he says.

E-discovery: Can it really make or break your case?

When Anthony Rupp III, a partner in Rupp Baase Pfalzgraf Cunningham & Coppola LLC, helped argue a class-action lawsuit against German-based shipping giant DHL last year, he was involved in the largest settlement in the history of his firm - $25 million.

Things might not have ended that way had Rupp not had access to critical information obtained from DHL through the process of e-discovery.

"It really was instrumental," Rupp said of his firm's ability to access upward of 1 million documents in the case. "My personal view is that it cracked the case."

The dispute, in which Rupp Baase was co-counsel with a Philadelphia-based firm, involved a class-action complaint alleging that the shipping giant failed to pay contractors for delivering packages. The errors, the plaintiffs charged, were caused by DHL's computer system, and resulted in up to 1,400 contractors not being paid or being underpaid for their work.

The break in the case came, in Rupp's view, when he was able to access DHL's vast collection of electronic files. "At one point, they delivered to us a couple of hard drives that contained much more information than a team of people could reasonably be expected to read and digest," he said.

Searching and analyzing the documents was the next step, and printing everything out was not a reasonable option. The team turned to software that sorted and catalogued the volumes of data, allowing Rupp and his colleagues to sift through and drill down to what was needed.

"I literally took it on vacation with me and stayed back, running searches while my family was at Disney World," he said.

Though the workload put a damper on two family vacations, Rupp's team prevailed.

"We found things on those hard drives that, we believed, revealed to us that DHL was aware and had been told that its computer system wasn't paying the contractors accurately or properly," he said. "Sometimes the only way, as a practical matter, that you are going to get this stuff is through electronic discovery."

DHL admitted to no wrongdoing in the settlement.

- Matt Chandler