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The Honolulu Advertiser
Posted on: Tuesday, June 7, 2005

Litigators turn attention to e-mail

By Porus P. Cooper
Philadelphia Inquirer

PHILADELPHIA — Row upon row of lawyers, about 50 of them, sat one May afternoon in a windowless room on the 13th floor of a Philadelphia office building.

WHAT TO AVOID WHEN E-MAILING

Eric M. Rosenberg, president of LitigationProofing LLC, a New York legal consultancy, has crafted what he calls "the seven deadly sins of business e-mail":

1. Using company e-mail for personal use.

2. Not considering how it would look in the newspaper.

3. Exaggerating, joking, losing your temper, boasting, guaranteeing, leaking sensitive information, carrying on a debate or spreading rumors.

4. Failing to heed copyright laws.

5. Assuming "Delete" effectively erases the e-mail trail.

6. Failing to double-check the "Reply," "To," "CC," "BCC" and "Lists" fields.

7. Ignoring incoming e-mail.

They were checking clients' e-mail.

It was just another day for the staff of Legal Logistics, a new and fast-growing division at Morgan, Lewis & Bockius LLP that assists the firm's litigators with "discovery" — the task of sifting through piles of evidence ahead of cases or regulatory hearings and sharing the findings with the opposition.

Not too long ago, discovery involved rummaging through boxes of paper documents stored in stuffy warehouses.

The explosion of electronic data in recent years — and the high-profile role of e-mail in big investigations — has dramatically altered the nature and intensity of the search.

"We have been humming 24-7 since we started," said Steph-anie A. "Tess" Blair, a veteran litigator who heads the Morgan Lewis operation.

The firm's 19 far-flung offices keep her staff of 85 lawyers, 15 information-technology professionals, and 25 paralegals busy nights and weekends, she said.

The "vast majority" of the electronic documents her crew scans are e-mails, Blair said.

E-mails have been a boon for prosecutors and plaintiffs' attorneys. New York Attorney General Eliot Spitzer used them to show that analysts at Merrill Lynch & Co. Inc. and other brokerages privately shunned stocks they publicly praised and extracted $1.4 billion in settlements.

Jurors are apt to find e-mails more believable than formal legal documents, experts said. And e-mail tends to multiply like weeds.

Some regulators, such as the Securities and Exchange Commission, require long-term retention of all written communications — three years in the case of broker-dealers. If litigation is expected, a company must keep the data indefinitely and produce them. All this can get expensive.

The operation led by Blair at Morgan Lewis "reflects the current and coming state of litigation," said Eric M. Rosenberg, a New York lawyer whose consultancy, LitigationProofing LLC, helps companies reduce the legal risks of internal communications.

He has compiled a list of what he calls "the seven deadly sins of business e-mail." One of them: Assuming clicking delete effectively erases the e-mail trail.

On average, each e-mail box in a company holds one gigabyte of data, Blair said. That's 150,000 pages, or 50 boxes of paper.

Her lawyer-reviewers typically scan the pages at the rate of 500 an hour, looking for specified information and deciding which of the documents can be shared and which are "privileged," or confidential.

A typical engagement involves scouring 150 e-mail boxes, Blair said. A technology vendor first tidies up the mess of data, removing duplicates of messages, for instance. That process usually costs $3,000 per e-mail box.

On top of that, Blair's team charges clients a flat fee for its legal review.