expertise in places as diverse as San Diego to Shanghai and New York to New Delhi,
I have witnessed a dramatic shift in the methodologies, technologies, and type of
personnel deployed on fact?finding exercises. From traditional gumshoe?style investigations
of larceny, fraud, and crime to sophisticated corporate electronic discovery
boondoggles that require the analysis of mind?boggling volumes of electronic data,
the world of investigations now requires a level of technical sophistication that was
unimaginable a generation ago. The acronyms are daunting, the risks of taking missteps
are found at every turn, and the ramifications of mismanaging data have been
felt by plaintiffs, defendants, and corporations far and wide in recent years in the
form of adverse inferences, sanctions, and default judgments.
One of my early major cases was the subject of a New York Times best?seller
and film starring John Travolta and Robert Duvall titled A Civil Action, in which
William H. Macy played my role, and he hit it out of the park. But what is interesting
to me today these short 17 years later is that during that entire epic investigation
and courtroom battle in which we were pitched against two of the nation’s
most fearsome litigation firms, the words electronic discovery were never uttered. Our
world was of paper documents and the physical handling of evidence acquired the
old?fashioned way.
A few years later I learned firsthand while working on the watershed Zubulake
v. UBS Warburg matter under the watchful eye of Federal Judge Shira Scheindlin just
how much things had changed, and scarier yet, just how out of touch so many of
the players were with the complex terms, issues, and risks associated with this newly
emerging world of managing electronic data in investigations and discovery.