By Karen Dybis

An increasing percentage of calls to law firms are about a subject that frightens even the best of corporations: electronic discovery.

Companies that readied themselves for the new rules still worry they are unprepared for a regulator or a lawsuit to come calling. As a result, e-discovery consultants like Anthony J. Diana and Jason B. Fliegel have found their phones consistently ringing.

Diana is a partner in the New York office of Mayer Brown Rowe & Maw LLP, where he has worked since 1997. At Mayer, the Columbia University Law School graduate specialties include commercial litigation, electronic discovery, internal investigations and bankruptcy.

Fliegel is an associate in Mayer’s Chicago office. He joined the firm in 1999, the year he graduated from the University of Chicago Law School. His specialties are complex litigation as well as e-discovery and document management.

Preservation: collecting and storing data

Preservation is most clients’ largest issue, Diana says. The top concern is how to collect and store the necessary data, much of which may be unnecessary down the road.

“There are so many different data sources out there, and many may not be known by a company’s external attorneys or end users,” Diana says.

For one client, the answer was the development of a data source catalogue: This required Diana and Fliegel to advise their client on a variety of issues, including acquiring a list of what data is available, where it is stored and how to produce it when needed.

“You need to disclose early and often how you’ve tried to preserve it,” Diana said. “It takes a lot of time to figure out how to have the most robust data source catalogue.”

Get to know IT

Ideally, this work is done outside of litigation, Fliegel said. However, some clients may not realize how much work is involved to preserve just a small amount of information, like the emails exchanged on one company laptop. The best of data-tracking systems may store it for as little as a week--and the request for that data could come years down the road.

That is one of the reasons Diana and Fliegel are advising clients to have their legal staff get to know how the IT department works.

“Even in a small business, you wouldn’t expect everyone to know everything everyone does,” Diana said. “That is why it is important for the legal department to identify what is needed and why you should keep it.”

Clients also are finding that it is key to hire outside experts to bridge the gap between attorneys and IT workers. In fact, one New York federal court judge recently ruled in a discovery dispute that he did not want the lawyer and IT expert talking to one another. Instead, he wanted a third party to mediate.

For both Diana and Fliegel, the bottom line is simple: Ignorance about e-discovery is no longer an excuse. Failing to show litigators and regulators how you have tried to preserve data can be as dangerous as not knowing where it is at all, Diana said.

Karen Dybis can be reached at Karen.D@BeTuitive.com.