Veni, Vidi, Vici: The Brave New World of E-Discovery
by Blake Miller and Mary Mark
Although attorneys have become converts to the use of technology in their practices, many still eschew electronic discovery in favor of paper. With more than 98 percent of information created and stored electronically it is difficult to justify the continued use of traditional paper production. The recent amendments to the Federal Rules of Civil Procedure, effective December 1, 2006, now make it impossible to avoid e-discovery issues. It is crucial attorneys understand electronic discovery, not only to satisfy their professional obligations but also to avoid severe judicial sanctions.
The rules were amended to “reduce the costs of discovery, increase its efficiency, increase uniformity of practice and encourage the judiciary to participate more actively in case management when appropriate” (Civil Rules Advisory Committee Report). Why the immediate need to amend the rules? Three reasons:
The volume of electronically stored information (ESI) is exponentially greater than paper documents. Simply put, electronic communication is the preferred method of doing just about everything from ordering pizza to conducting global business. The legal consequences are staggering. One gigabyte of data equals about 75,000 text pages. Microsoft has just released its answer to the iPod called a Zune, which has a 30 GB storage capacity. The average home computer is 80 gigabytes. Computer networks store information in “terabytes,” the equivalent of 500 million typewritten pages of plain text. Americans create an average of 250 to 300 million e-mail messages a month. Automobile computers today store more data than the on-board computers that ran the space capsules. A cell phone is a treasure trove of information. In short, data is everywhere and it’s discoverable. (See side charts.)
ESI is dynamic
ESI can easily be added, changed, saved and deleted – often without any conscious intervention by the operator. Documents that are never intentionally saved by the user may still exist because of the auto save feature of certain software.
While saving a document is easy, deleting ESI is difficult. Hitting the delete button makes the file disappear from your view, but the only thing that is missing is the link to the space where the document was saved on the storage device. The document is still there, “hiding.” As space on the storage device is used up, the data is written over and consequently removed, but until it is written over, it may be retrievable by a good forensic technician.
ESI documents also have “metadata” associated with them. Metadata is the information that describes the document, such as who authored it, when the document was created and last updated, and edits. This data is not normally seen by the user but can be extracted for review.
ESI often doesn’t stand-alone
Electronically stored information is often incomprehensible when separated from the software that created it. Data created and stored in products like Quicken and QuickBooks need the application in order to view the data, as the user would see it.
It’s easy to see why the explosive growth in electronic discovery triggered modifications in the federal rules. Here’s a quick explanation of how the rules have changed.
Rule 16(b)(5) and (6).
Rule 16 has been amended to allow the scheduling order to address provisions for disclosure or discovery of ESI and any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production.
Electronic data are persistent and fragile. It is constantly being modified and overwritten. The mere act of booting a computer can affect and even delete potential electronic evidence. Whether you want to obtain such information for your case or defend against potential spoliation claims, it is important to address electronic data discovery at the onset of a case.
On and after December 1, 2006, as part of an initial disclosure, each party must provide a copy, or description by category and location, of all ESI the disclosing party may use for its claims or defenses.
You will need to know what technology your client is using and how it’s used. Meet with your client’s IT staff and walk through their offices to get a first-hand look at potential ESI sources.
Under the amended rule, a party need not provide ESI from sources not reasonably accessible because of undue burden or cost. Two examples of this are data that would be on back-up tapes intended for disaster recovery (which often are not indexed), and legacy data from obsolete systems (which might be unintelligible on successor systems). The party in possession of such ESI, however, bears the burden of establishing that the information is not reasonably accessible on a subsequent motion to compel or for a protective order. A showing of lack of reasonable accessibility may be overcome by a showing of good cause.
If information is produced that is subject to a claim of privilege or work product, after notification, the recipient is required to promptly return, sequester, or destroy the specified information and cannot use or disclose the information until the applicable claim is resolved. The receiving party may present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, reasonable steps to retrieve such information must be made.
Rule 26(f)(3) & (4).
At the parties’ Rule 26(f) conference, counsel must confer regarding preserving discoverable information. This is particularly important in the area of ESI. Consider United States v. Philip Morris USA, Inc., 327 F. Supp. 2d 21 (D.D.C. 2004). A preservation order was entered on 10/19/1999. Philip Morris, however, continued to “delete electronic mail…which was over sixty days old,” and these deletions continued for two years. Counsel became aware in February 2002 and notified the court in June. Eleven employees, including some “hold[ing] the highest, most responsible positions in the company,” failed to follow the preservation order. The government sought adverse inference. The Court imposed $2,995,00 in sanctions against Philip Morris.
In addition to preserving discovery information, the parties should discuss any issue related to disclosure or discovery of ESI at the Rule 26(f) conference. This would include “the form or forms in which [ESI] should be produced.”
Attorneys will need to be familiar with the discovery’s data pool before making any production decisions. In paper document production, parties must decide whether to turn over paper copies or scan the images and produce TIFFs or PDFs. These options also apply to the production of electronic information, but now additional choices are available. They are grouped into four production categories:
1. Paper: Literally printing or “blowing back” hard copies of the images.
2. Quasi-paper: Converting all the documents to TIFFs or PDFs, which can be viewed via an image browser. Usually the text from the data (similar to OCR) is captured and, along with the image, is loaded into a database such as Summation or Concordance.
3. Native: Producing the information in the format that it was used – spreadsheets in Excel, word processing in Word and e-mails as Outlook .PST files.
4. Quasi-native: Producing a database (like Quicken) in an exported file along with the field structure or perhaps requesting that certain reports be generated from the database and produced instead of requesting the entire database.
There are pros and cons for each category. Choose one that best suits your data type.
Paper productions are great for cases with a small number of documents. Blowing back the images may be preferable. However, even when the numbers are small, printing may not be the best choice. Blind carbon copies aren’t always shown on printed e-mails. Hyperlinks are lost on paper. None of the metadata is available when you print to paper. Attachments to e-mails are often overlooked when the e-mail is printed.
Quasi-paper has been the top choice for the last few years. E-discovery vendors can quickly create TIFFs or PDFs of the documents and produce litigation database load files with this form of production. The opposing party usually demands the production include metadata, which is not available with paper production.
Native file production is getting a lot of attention lately. Techno savvy attorneys want most of their discovery in native form. Search ability is enhanced and metadata is easily accessible.
However, most e-discovery technicians suggest native format only when producing files like spreadsheets or databases. In addition to the figures visible on the page, the formulas and links within the spreadsheet are usually important. You lose the ability to see the formulas when the sheet is simply imaged or printed. Be aware that these files are dynamic and you can easily change the data as you review it. It is always a best practice to keep the originally produced data in a safe place and only view copies to avoid spoliation.
Bates stamping and redacting have been impossible with native files but e-discovery vendors are figuring out ways around these problems.
Another complication with native file production is that you must have the appropriate software to view each file. Documents that are several years old may have been created in older versions of software that are no longer available. Law firms usually update the software they use on a regular basis, so the software version that older documents were created in may not be available at your firm. An advantage to using an e-discovery vendor is that they usually have the ability to process files created in older software versions.
Lastly, in regard to Rule 26(f), if the parties agree on a procedure applicable to the inadvertent production of attorney-client or work product material, such agreement should be memorialized at this time. Any such agreements can be subject to a court order under Rule 16.
This rule was amended to include ESI within the category of business records that a responding party may identify and allow the requesting party the opportunity to examine, audit or inspect. If such ESI is contained in legacy or other systems not otherwise generally accessible in a usable form, the responding party may have to provide sufficient technical assistance to allow the information to be examined. In some cases, the responding party may need to provide direct access to its electronic information system to the opposing party. Prior to electing this option, think carefully about the consequences.
A party may serve a request to produce ESI allowing the requesting party to inspect, copy, test or sample such ESI in any medium from which the ESI can be obtained – “translated, if necessary, by the respondent into reasonably usable form.” The request may specify the form or forms in which ESI is to be produced. If there is an objection to the form in which ESI is requested, such objection should be stated in the response together with the form or forms in which the responding party intends to produce the ESI. If the request does not specify the form or forms for producing ESI, the responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. A party need not produce the same electronically stored information in more than one form. Electing to produce ESI in the form not ordinarily maintained does not allow the producing party to choose a form that is less searchable or usable than the original form.
Searchability is an important feature in ESI. Because the ESI is already in electronic form, you can use the power of the computer to process it. You can also drastically reduce the volume of documents and the time spent reviewing them by narrowing and searching the ESI using date ranges, names, issues and key words or phrases.
In J.C. Associates v. Fidelity & Guar. Ins. Co., 2006 WL 1445173 (D.D.C. 2006), an insurance company faced a discovery request from plaintiffs that sought the review of 1.4 million active and inactive claims and litigation files in the possession of the producing party. Defendants narrowed the number of potentially responsive files from 1.4 million to 454 based on “internal codes identifying the category of the claim.”
Rule 37 has been amended to provide that sanctions are not generally appropriate where ESI is lost as a result of the routine, good faith operation of an electronic information system.
Subpoenas may be issued to require the production of ESI or testimony regarding ESI. Similar to a Rule 34 request, a subpoena may specify the form or forms in which ESI is to be produced. The request, production (including the form of ESI), challenges to production of ESI, and protection of attorney-client and work product documents under a subpoena generally track the procedures under Rules 26 and 34.
Rule 45 also allows for a subpoena to permit testing and sampling as well as inspection and copying. In cases involving voluminous documents, it may be wise to sample first, which will reveal the appropriate areas of production.
It is obvious that the days of simple document productions are over. The amended rules will require much more attention to discovery early in the case. While the evidence may be more voluminous and dynamic, savvy attorneys who hop on the e-discovery bandwagon now will save themselves headaches, delays, costly errors and expenses later. Remember: e-discovery hasn’t changed an attorney’s objective – which is to find helpful information as quickly and efficiently as possible, while identifying potential land mines in your client’s case before your opponent does. Since this all plays out on a digital landscape instead of paper, the partnerships established with vendors, paralegals and IT staff are crucial and may make or break a case. Attorneys, long regarded as solo entrepreneurs, may have to rethink their “go it alone” strategy in favor of a more inclusive team approach.
• E-mails and attachments
• Word Processing documents
• Document Management Systems
• Information stored in Data Recorders
• Instant and text messaging
• Web and Internet Logs
• Server Logs
• Handheld and Personal Information Manager Data
• GPS Logs
• Security System Data
• Chat Room dialog
• Related Metadata
Where should you look for ESI?
• Personal computers
• Handheld devices
• Cell Phones
• Internet Service Provider records
• Instant Messaging Services
• Internet Search and Data Providers
• Data Recorders
• Security Systems
• External Hard Drives
• Laptop computers
• Thumb Drives
• Fax machines
• Digital copies
• Medical Devices
• Retail purchase and credit card machines
• GPS systems
• Automobile computers
• Paging devices
• Backup disks and tapes
• Legacy systems