When it comes to resurrecting old files that had been deleted, case law used to focus on whether or not it was possible to retrieve the data in the first place. Nowadays, attorneys and judges presume forensic computer specialists can get just about anything from an old hard drive. The big question today is who will pay for it. Chad Papenfuss, litigation support administrator with Fredrikson & Byron in Minneapolis, calls e-Discovery "the hottest field right now in litigation automation." He estimates that the industry could grow into a $5-billion-per-year business in the next couple of years. As dusty old boxes of files are increasingly being replaced by slick CDs full of electronically stored data, Papenfuss says many in the legal profession are confused about how to handle the e-files. "What used to show up as 10 or 20 boxes of documents now shows up in one or two CDs, and people are all in a panic: 'Well, hey, what can we do? Can we just print that?' Well, yeah, you can, but if you print certain types of documents or files, you can actually lose data. Technically, it's called meta data," he told LawCrossing. There has been recent case law in which attorneys have gotten into hot water with judges and even been sanctioned by the court for presenting documents with missing meta data, he says. When you send an email, it's not just the "to" and the "from" that are relevant beyond your actual message. There are also the date modified and the date created. When you print the data, you lose that background information - which can get you in trouble. And it can cost millions of dollars to hire computer forensics experts to mine the data. Papenfuss says it's best to store your own data to begin with. Instead of litigation support administrator, he says his title would be more appropriate as "practice support specialist" since much of his job involves training attorneys and helping them to automate their practice. He also helps them present evidence through high-tech displays. "The challenge is to teach old dogs new tricks," Papenfuss said. "They [attorneys] do not want to bite off the cost for automating right up front. They're happy with their paper cost." Although automating a case immediately can involve hefty upfront costs, Papenfuss says scanning and imaging your paper files from the beginning ultimately results in cost savings. "By automating, they can find those documents in seconds instead of what could be hours or days or even weeks," he said. Often it is a paralegal - not an attorney - who is asked to rummage through boxes of files for a certain document, which may be why some attorneys are not as convinced that automation makes life easier. Litigation support people have various backgrounds. Papenfuss says some legal experience and lots of technological aptitude are important. He actually entered the field as a law clerk and steadily rose through the ranks. With a degree in political science and a minor in Russian history, Papenfuss always planned to become an attorney. But the exorbitant costs of law school and family commitments convinced Papenfuss that there were other ways to pursue a legal career. He started his career "in the trenches" as a case clerk and became a paralegal before becoming interested in the burgeoning litigation support field. "I gained that simply by always being told, 'No, you can't do that.' And I said to myself finally, 'I don't accept that. I'm going to go out and find the education and then actually get into a position to learn it.' And guess what, I found out I could do it," he said. He says many people who want to enter the field overestimate their technological aptitude. One recent applicant confused computer memory with hard drive space, for example. Papenfuss has worked for several vendors who specialize in automating legal documents. That experience helps him keep up to date with new technologies. "The fortunate thing is I've been on both ends. I've been on the law firm end and on the vendor side, those vendors that supply the automation services. So I have a feel for both sides, and I am able to pool that experience as an administrator now to reflect or really push at least what I think are the main themes, the main ways that people try and present cases." In litigation, Papenfuss says his team often uses graphics and Flash presentations similar to what evening news programs like "Dateline" or "60 Minutes" use. But sometimes old-fashioned paper is the best way to give jurors the feel of a case. He says judges are finding that automation can shave the time of a trial by as much as 30 percent. "So obviously for economic reasons they're pushing that. A picture is worth 10,000 words," he said. "But it's not all electronic presentations, for the right things you actually do still use very effectively what might be a paper handout to give the feel and touch of, say, the magic contract in your case."

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