From the desk of - Florida Yacht Brokers Association, Inc.

MaritiMe Law
8
Watch What You Say and How You Say It:
The New World of eDiscovery
Yacht brokers and those affiliated with the yachting
industry should understand the issues surrounding a
legal process called e-discovery. It stands for “discovery
of electronically stored information (ESI)”. Quite simply, the term
refers to the discovery of documentation and other data created
and/or kept in electronic format.
When a dispute reaches the
litigation stage, parties on both
sides are entitled to receive any
type of non-privileged information
the other side has that is relevant
to the issues in the case. In
today’s digital age, that means
parties to litigation are now
required to preserve and hand
over all information that is kept in
electronic format.
This can amount to a lot of
information – much more than
parties in a dispute created back
when all records were in paper format. For example, in 2004, it
was estimated that approximately 95 percent of all documents
were created electronically. In fact, some businesses no longer
keep paper records.
In addition to electronically stored documents and e-mails,
courts frequently require parties to mine their electronic
databases for relevant documents using agreed-upon search
terms and to submit those documents in reasonably usable
format, which allows the other parties to search and review those
files. This might not be the format that documents ordinarily are
kept in during the party’s usual course of business. Sometimes
courts even require that the parties produce metadata, which
includes information such as file dates and sizes, attachments
to emails, dates documents were created or modified, custodian
names, author names, etc.
One might wonder how a party engaged in a dispute over a
brokerage commission, for instance, or the sale of a vessel gone
APRIL/mAy 2012 | fLoRIdA yAcht bRokeRs AssocIAtIon | www.fybA.oRg
By Amber e. Ferry, esq.
attorney at Moore & Company, P.a.
wrong would even begin to go about collecting this type of data.
That’s where ESI vendors come in. On behalf of their clients,
lawyers retain ESI vendors who can extract the necessary data
from their clients’ computers and the various databases they
use. Of course, this can increase litigation costs.
ESI experts look for
information in one party’s
possession that is required by
the other side, collect it, convert
it to a usable format, and then
present it with an explanation
of the processes they utilized.
If this sounds like an expensive
process, that’s because it is.
Estimates ranging anywhere
from $100,000 to $500,000 for
ESI vendor services are not
uncommon. In fact, in 2009, ESI
vendors reported revenues of
about $2.8 billion.
So why should those in the yachting industry be concerned?
At the time this information is created, people rarely anticipate
that it might be used in a legal dispute. As a result, statements
often are included in documents that later end up compromising
the positions parties take in litigation. It is impossible to predict
just how this information will be utilized in court.
For this reason, it is important to stop and think before
creating any sort of record in electronic format; whether it be
an internal office document, an e-mail, a wire-transfer, a fax,
or even a tweet or Facebook post. Because, if it exists, it is
discoverable.
*The information offered in this column is summary in nature and should
not be considered a legal opinion. For more information, e-mail amber.ferry@
moore-and-co.net/ or call 786.221.0600.