In a growing number of legal disputes, opposing parties are now sharing relevant information—a pretrial phase called discovery—in the form of computer files. While some forms of electronic discovery have become routine, others involving computer forensics and complex searches of massive data collections call for certain specialists, say some professionals in the emerging field of e-discovery.

David Nevala, information technology director at Lukins & Annis PS, a prominent Spokane law firm, says e-discovery has replaced paper filings in some instances.

"Courts are requiring more e-discovery because electronic data is easier to store," he says. "Most court filings can be done over the Internet."

Meanwhile, new types of data-search software are emerging to help companies search electronic files to comply with e-discovery requests in an age when the volume of information stored in a file cabinet is no match for a pocket-sized data-storage device, he says.

The firm, however, outsources some of its more complex discovery requests, where the sheer amount of data to be searched is problematic, Nevala says.

Marcus Lawson, who founded the Spokane-based computer forensics and e-discovery company Global CompuSearch LLC, in 2000, says most of his company's work originally was done in criminal defense and military cases.

Since then, though, Global CompuSearch has grown to six full-time examiners from one, and the majority of cases it works on are civil, involving areas such as business law, family law, and employment law, he says.

Computer forensics sometimes is brought into play during discovery when specialists recover files that are damaged, partially deleted, or hidden on computer hard drives and other data-storage devices, Lawson says. Global CompuSearch often is hired in cases involving allegations of theft of proprietary information, usually after a key employee leaves one company and joins another.

In one such case, computer forensics helped prove that an employee who left one company stole computer-aided design documents and brought them to a competitor, Lawson says.

Every computer file is created with certain unique identifying characteristics, sort of like virtual DNA, he explains. In addition to documents and images, a file contains information about where and when it was created.

"When a file on one computer matches a file on another computer, it's like a blood trail going from one to the other," Lawson says.

The company also often is called upon to search computers and other data-storage devices for evidence of hidden assets in divorce cases and other nefarious acts in child-custody cases, he says.

Eric Blank, founder and managing attorney at Blank Law & Technology PS, of Seattle, says data-search tools that aid in e-discovery are improving, but so are data-storage capabilities, and the amount of digital data that might contain relevant information continues to swell.

"The problem with electronic discovery is we save everything," Blank says. "Storage is cheap. Sorting is hard and can be expensive."

Even the largest law firms outsource e-discovery work for some cases, he says. "Sometimes there is so much data to search that a firm doesn't want to overload its own system."

Blank has worked here occasionally as an expert in e-discovery and information technology, including in a highly publicized case involving issues surrounding former Spokane Mayor Jim West's use of city computer equipment to visit certain Web sites.

Blank this year launched Electronic Data Extraction Network, an association of e-discovery specialists, which aims to establish a uniform approach to extracting and collecting digital data.

"One challenge I worry about is that we need national standards," he says. "We know how to handle physical evidence such as a knife with fingerprints. We don't have national standards for retrieval and handling of data."

Some basic standards yet to be agreed upon include the number of copies of data that should be made for e-discovery purposes, he says.

"We make two copies of everything," Blank says. "Some firms make three or four copies."

Guidelines also are needed to determine the extent of e-discovery that should be required for certain cases.

"We need to decide where to draw the line between forensics and e-discovery," he says.

Traditionally, discovery has been paid for by the producing party, rather than the party requesting the information, Blank says. Discovery that requires computer forensics, though, sometimes can be more expensive than can be justified by either side in a dispute.

"The fight is always about benefit versus burden," he says. "We're going to find relevant data, but is it going to be worth it?"

Lawson says computer forensics is a high-overhead endeavor.

"The initial cost of the software is expensive," he says. "To keep the software license, we're required to keep it updated, and that's also expensive."

Lawson says the company uses the two e-discovery and computer forensic software programs that are most accepted by U.S. courts.

He says examiners are compensated well and must update their training regularly.

"It's a complex job," Lawson says. "It takes deep thought, and you can't make mistakes."

Global CompuSearch typically charges public entities $195 an hour and private attorneys $250 an hour for its services, he says.

The company has a national private-attorney client base, and military cases often require international travel, Lawson says.

"We have a lot of clients here, and we have as many clients in Connecticut as we have in Washington state," he says.

Examiners travel wherever they are directed by court order to make an exact copy of a computer hard drive or other electronic data storage device through a process Lawson calls "acquiring the machine."

The actual data extraction generally is conducted in the Spokane office, he says.

Pretrial depositions are a standard part of the discovery process and they also are evolving in the age of e-discovery, says Lukins & Annis' Nevala. In such a deposition, pretrial testimony of a witness is taken under oath before a court reporter, usually in a lawyer's office. The court reporter usually provides attorneys with transcripts in printed and digital formats, and the digital version can be searched for key words to aid in trial preparation, he says.

Nevala says incidental duplication of information is a rising "phenomenon of electronic data" that also needs to be addressed in e-discovery issues, because some relevant information may be saved in different forms such as e-mails, phone texts, electronic images, and other digital formats.

As electronic data grows, law firms also need to review their document destruction policies, Nevala says.

"In our firm, we have got our own policies," he says. "Different types of electronic documents would be preserved longer than others."

Wills and estate cases are preserved permanently, he says.

Some data, such as electronic real estate documents, are kept for at least seven years, he says.

In some other instances, data are returned to clients when cases are concluded.