On Feb. 18, the WNYPA membership enjoyed a presentation by Deborah Westwood, litigation-support and e-discovery consultant and owner of InTechGration. The presentation included a discussion of electronic discovery that addressed preservation, litigation hold letters, data retention and how social media play a role in e-discovery.

The challenges attorneys and paralegals face when dealing with e-discovery continue to grow at an exponential rate. As Westwood points out in her article "eDiscovery's Greatest Challenge to Lawyers," "identifying exactly what kind of a challenge it is has proven to be (hard) to define. Some would consider the sheer volume of ESI (electronically stored information)to be the greatest challenge. Others would say it's the impenetrable technical jargon that presents the biggest hurdle to lawyers. Or perhaps it's the fragility/persistence paradox that has most lawyers scrambling to catch up."

Many attorneys, especially those who do not practice in federal court on a regular basis, take a wait-and-see approach when it comes to dealing with the challenges of e-discovery. However, it is more advantageous to be proactive and address the issues before problems arise.

Of course, on federal-court matters, attorneys should discuss the scope of e-discovery at the Rule 26 conference. Although few state courts provide for a meet-and-confer (Rule 26) conference, many state courts are adopting similar rules to the federal e-discovery rules. For example, New York state courts have adopted Commercial Division Uniform Rule 8(b) and Uniform Trial Court Rule 202.12(c)(3) to get the parties to confer on ESI-related issues before the preliminary conference.

The New York State Unified Court System's recently published "Electronic Discovery in the New York State Courts: A Report to the Chief Judge and Chief Administrative Judge" makes a number of recommendations to address the many concerns regarding ESI. The report proposes several initiatives to improve the court system's ability to handle ESI-related issues at the preliminary conference.

Westood states in her article, "What is lacking is a general understanding that to properly handle an e-discovery case requires planning. Not just a broad game plan, or a roadmap, or an initial case assessment, but really detailed planning. This means being proactive. It means thinking of all the what-ifs and then planning for them, up-front, before opposing counsel thinks of them and starts asking you about them."

Paralegals can play a key role in the management of ESI. Project management is one way of ensuring that everything on the e-discovery checklist is taken care of, but it also formalizes who needs to communicate what, to whom, and when. As professionals, we must continue our education regarding changes in court rules and the wide variety of technology available to assist in processing ESI.

As paralegals increase their knowledge ESI issues, we will be better able to assist attorneys in dealing with any issues that may arise during a Rule 16 or preliminary conference.

The WNYPA Web site, wnyparalegals.org, is a good place to start if you want to learn more about e-discovery and handling ESI - it includes a listing of many available continuing-legal-education classes and meetings offered.

Westwood can be reached at 716-885-3910 or through the company's Web site, intechgration.com.

- By Beth Bialis, paralegal coordinator at Hodgson Russ LLP