The electronic revolution comes to litigation

We all know that the information revolution has radically changed our lives and our businesses. Fifteen years ago, few businesses in New Hampshire even had e-mail, but today it is not an overstatement to say that virtually no business could operate without electronic documents and document management. Business organizations have thousands, if not tens of thousands, of times as much information within their boundaries as they did in years past. (For example, Exxon Mobil stated in a recent case that its employees generate 5.2 million e-mails daily.)

This has caused profound change in the way business cases are litigated.

Through much of history, information was physically stored. Lawyers involved in proving cases sought paper copies of documents. Now lawyers know that the most relevant information is frequently in the data. Litigation began to develop in the last 10 years about what data must be produced and how it must be produced.

Seeking to meet those societal changes, the Federal Rules of Civil Procedure were amended effective December 2006 to specifically provide rules relating to preservation of electronic information and provisions for discovery of it. Businesses involved in lawsuits now learn during their first conference with their lawyer that they must preserve documents and that they must undertake review of their systems to make sure that documents are not inadvertently destroyed.

A businessperson’s first reaction to all of this might be one of despair — more difficulty and more expense in litigation. But the opposite is true. The ability of technologically savvy firms to obtain information through electronic discovery have leveled the playing field for smaller businesses, which can use efficient, less expensive small firms to litigate cases it would have been too expensive to litigate in the past.

In fact, the American Bar Association recently noted in an online article that even larger corporate legal clients are developing an affinity for small law firms.

Horace W. Jordan Jr. of Lake Forest, Ill., chair of the ABA Section of Litigation’s Corporate Counsel Committee, stated that, “I do believe we are seeing an increase in inside counsel using smaller boutique firms.” He said he believes that two dynamics are responsible for this change: “The billable hour and a feeling that the smaller firm might have more flexibility in both arranging billings and understanding the client and its business.”

Steven J. Curley, co-chair of the ABA’s Sole and Small Firm Committee, recently noted that “many benefits that were traditionally available only at larger firms can be replicated through an artful use of technology” by a much smaller firm.

In Curley’s words, “You don’t need the 100,000-volume law library that the big firms heavily invested in years ago. You don’t need the trappings of first-class office space in a landmark building like people used to insist on years ago.”

Firms in New Hampshire that emphasize a high-tech approach to business litigation have been able to successfully litigate with much larger firms all over the United States, while billing clients at far lower rates than larger, more traditional firms. In many ways, the willingness of small firms to utilize technology and engage in more creative billing arrangements is giving businesspeople the opportunity to litigate when they have been harmed without risking the very existence of the company because of enormous legal bills.

Richard McNamara, a member of the Manchester-based law firm Wiggin & Nourie, focuses his practice on complex civil litigation, including class actions in the federal court. He can be reached at 603-629-4590 or rmcnamara@wiggin-nourie.com.