United States: E-Discovery Doesn’t Have To Be A Dirty Word

Last Updated: December 16 2014
Article by Matthew S. Adams

Originally published September 4, 2014

The term "e-discovery" is still considered a dirty word in some circles. Imagine that, we can use technology to check in on Facebook or send a Tweet from a smart phone in just about any corner of the globe, but when it comes time to litigate issues that invoke the dreaded "e word," litigants and even judges become bewildered, shuttering at the thought of garnering the necessary evidence to successfully prosecute or defend against a claim through the use of 21st century technology. It doesn't have to be that way.

Most of the resistance to incorporating digital evidence into a case revolves around cost, and there is no avoiding the fact that e-discovery comes at a price. One need not look any further than the 2013 District of New Jersey decision by United States Magistrate Judge Michael Hammer in Juster Acquisition Co. v. North Hudson Sewerage Authority, 12-cv-3427, to realize both that e-discovery is a critical component of litigation, and that it comes at a price. In Juster, Magistrate Hammer rejected the plaintiff's contention that a request for e-mail discovery was too broad, unduly burdensome, unreasonably cumulative or duplicative, reasoning that all that all the plaintiff needed to do was run key word searches of its database. Moreover, Magistrate Hammer ruled that the plaintiff would have to bear the expense of the necessary searches on its own, and that the costs would not be shifted to the requesting party.

E-discovery does not come with as steep a price tag as many think if done correctly, especially when the costs of not undertaking the e-discovery process are considered, but I'm not here to plug the vendors performing the valuable work in this space. The real issues that I am here to tackle are some major misconceptions about a simple hyphenated word that has thrust its way into the legal lexicon as a product of the ongoing digitalization of our world.

One of the biggest misconceptions associated with e-discovery is confusion about what e-discovery really means. As much as many clients (and, sadly, even some lawyers and judges) view e-discovery as just some exclusive, automated way of reviewing documents that only so-called "white shoe" law firms can afford, that is just not accurate. E-discovery is actually a general term used to describe two separate, yet related, activities involving electronically stored information ("ESI"): (A) the collection of ESI through digital forensics to preserve the integrity and admissibility of the evidence; and (B) the production and review of ESI during the course of a case, including all of its constituent sub-parts, using specialized tools (i.e. software). The former is necessary, in short, to ensure that the ESI is collected in a way that it remains admissible and credible for use at trial. The latter is a way that the "techies" have devised for making the ESI usable by lawyers, their clients, and the courts (in other words, the "non-techies" among us) to garner the facts needed for a particular case.

E-discovery is an issue in big cases and small cases alike. The same general principles apply as far as e-discovery is concerned to the defense of a juvenile narcotics charge where text messages exonerate the defendant, as they do to the prosecution of a massive employee raiding action where there are allegations of trade secret misappropriation by traveling salespeople using their company issued laptops, tablets, and smart phones. E-discovery has nothing to do with deep pockets verses shallow pockets, large law firms or small ones. Instead, e-discovery issues exist anywhere there is ESI. Since ESI is becoming more common by the minute as technology advances, e-discovery is not just some trendy fad for the litigation elite – it is a necessity that is here to stay.

As ESI becomes increasingly ubiquitous – dominating the way that we live, work, and play – there is going to be a point when the e-discovery deniers will no longer be able to avoid e-discovery like the plague. The following are some of the most common misconceptions about e-discovery that need to be de-bunked, once and for all:

1. Paper is just as good as ESI.

FALSE. Paper is good, but ESI is better. ESI and paper documents differ dramatically. ESI is an original source of information, in the same way that a proof once was for film-based photography. Beyond that, ESI is also a source of additional information, much like our DNA is a source of additional information about who we all appear to be on the surface. Paper documents are, in many cases, the mere print of a digital proof without the extras. Yes, there are situations where there is not a corresponding digital copy to each paper document, but where there is, the ESI contains highly relevant information that the paper copy does not. That information is called metadata. In its simplest form, metadata is separate electronic data about the ESI. For example, in an e-mail file this might include the name of the inbound and outbound servers that were responsible for making the communication happen. Metadata might also provide information about when a word processed document or spreadsheet was created, as well as information regarding each time it was accessed and modified. Metadata is electronically stored within ESI, therefore it can only be reviewed or analyzed in electronic format using specialized tools. It does not take too much imagination to think of a case where metadata can be used to tell a story in far better detail than a sheet of paper. I also shouldn't be accused of being cynical for suggesting that metadata is one of the best ways to keep people honest. The bottom line is that it is often highly beneficial to pursue raw ESI in its native form using forensic collection methods to preserve its integrity, even where the same information is ostensibly reflected in a paper document. Although the body of law in this area is still evolving, the cases dealing with the question of whether there is an obligation to produce metadata generally establish that there is a presumption of production, provided that the metadata is relevant, and subject to the types of arguments against production addressed in point 4, infra. See e.g., Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 425 (D.N.J. 2009) ("[T]he producing party ordinarily must take into account the need for metadata to make otherwise unintelligible documents understandable.").

2. Once ESI is deleted it is gone forever.

FALSE. If you incinerate a paper document in a fire, it cannot be recreated. However, the nature of ESI is such that merely moving something to the Recycle Bin of your computer's desktop or clicking delete is not necessarily the end of that information, even when you empty out your Recycle Bin. Deleting a file moves the file into unallocated space. It is not removed from memory until that unallocated space is needed for another function and the file is overwritten. Deletion does, however, remove the links (i.e. icons and lists in file directories) that make it easy for people without advanced training in computer science to track these files down. Thus, even when you think that you have deleted a particular piece of ESI permanently, digital forensics (CSI for techies) may still be able to track the file down. If digital forensics cannot locate the actual file, simple digital forensic methods may at least be able to highlight registry entries that shed light upon when and how the particular file was deleted. In many cases, this is all that is needed to prove that the document once existed, but was deleted to evade discovery. Clearly, if intentional, this type of conduct is sanctionable, perhaps even criminal. However, if it were not for e-discovery, such conduct could never be uncovered. Aside from the smoldering flames, there isn't much of a signature left behind by destroying paper documents in a fire.

3. E-discovery means that we can never delete anything.

FALSE. There are regulated industries where it is the law that you must save just about everything, down to the last bit and byte of ESI, at least for some period of time. Without going into too many specifics, the financial services industry is just one of many examples where there is a comprehensive regulatory body governing how ESI must be retained. There are also situations, such as litigation holds, where the mere posture of a dispute dictates that files cannot be modified or deleted. In fact, the generally excepted standard is that a litigation hold obligation attaches once a dispute is reasonably anticipated, even before a formal litigation hold directive is issued. However, the prevalence of e-discovery in our modern litigation climate does not mean that everything must be saved for an indefinite duration. The law surrounding e-discovery issues has evolved in a way that acknowledges the burden associated with digital retention is similar to the burden that was once associated with paper record archiving. Although they must be carefully designed to strictly adhere to the law governing your particular industry or application, digital retention policies, complete with destruction schedules, are not only acceptable, they are recommended. Just like a company should not make a habit out of keeping every piece of paper that was ever relevant to its operations, it should also design an appropriate digital records retention policy to fit its specific needs, while at the same time ensuring compliance with applicable law.

4. E-discovery is necessary and appropriatein every case.

FALSE. The Federal Rules of Civil Procedure are considered to be the first set of unified court rules to acknowledge and address the prevalence of ESI in modern litigation. Most states have followed the federal lead with e-discovery rules of their own, even copying the exact same rules designed by the federal rules committee. The state and federal criminal rules are playing catch up too, albeit at a slower pace, largely due to the unique challenges presented when one of the parties responsible for participating in the e-discovery process in criminal cases is the government, and the constitutional considerations that are also at play in criminal cases. A broarer review of the Recommendations for the Production of Electronic Discovery in Federal Criminal Cases, promulgated by the Joint Electronic Technology Working Group (JETWG), warrants its own standalone discussion and will be addressed in a future article on this blog.

The Federal Rules of Civil Procedure and the case law implementing them have long since recognized that there are instances where e-discovery is not necessary or appropriate. For example, just like with any other form of evidence, it is always an option to raise relevancy objections in response to requests for the production of ESI. Furthermore, Rule 26 of the Federal Rules of Civil Procedure provides specific relief from excessive, unduly burdensome, and costly e-discovery requests, including, but not limited to, the following specific examples:

  1. Rule 26(a)(1)(C) and Rule 26(f): Requires that litigants "meet and confer" to address, at least from a general perspective, how discovery will proceed in the case, reduce that plan to writing (i.e. the "joint discovery plan"), and to make initial discovery disclosures not later than 14 days after the meet and confer takes place. This gives litigants an opportunity to know, from the earliest stages of a case, whether potentially abusive, unnecessary, and expensive e-discovery will be sought. It also affords them the opportunity to address disputes at the scheduling conference, typically held with a Magistrate Judge, in order to avoid unnecessary motion practice.
  2. Rule 26(b)(2)(B): As the title to this sub-section of Rule 26 indicates ("Specific Limitations on Electronically Stored Information"), Rule 26(b)(2)(B) places specific limitations on the production of ESI. The rule allows parties to designate certain sources of ESI as "not reasonably accessible because of undue burden or cost." If the adverse party persists and demands production of the ESI notwithstanding the designation, on the demanding party's motion to compel, the party from whom discovery is sought must make a prima facie showing to the court that the information sought is actually not reasonably accessible because of undue burden or cost to that party. If the Court is convinced by the party's undue burden or cost argument, the Court is within its discretion to order the production of the ESI at the requesting party's expense, or using another other creative mechanism to combat abuse of the e-discovery process.
  3. FRCP 26(b)(5)(B): Because handling ESI can be cumbersome and time consuming, increasing the margin for error, this rule provides a specific procedural mechanism for requests to "claw back" ESI that is subject to an applicable evidentiary privilege like the Work Product Doctrine or that constitutes an Attorney-Client Privileged communication which has been inadvertently produced in an e-discovery exchange.
  4. Rule 26(g): Requires an attorney to sign every e-discovery request, response, or objection. If the request is found to be for an improper purpose, the attorney is subject to punishment.

In sum, e-discovery is not always necessary or appropriate, and merely commencing an action or defending against one commenced against you does not constitute your consent to provide unfettered access to your ESI. Where e-discovery abuses persist, a protective order is also a useful tool to prevent e-discovery from being used by your adversary as a tool to bludgeon you into submission.

Keeping the forgoing responses to these common myths in mind will go a long way toward eliminating the most troublesome negative connotations associated with e-discovery. Technology is not going anywhere, so we all are better served familiarizing ourselves with the rules, policies, and procedures at play when operating in the e-discovery arena, rather than clinging to these potentially dangerous misconceptions. Adopting any one of these myths is a sure way to encounter serious problems that could devistate your case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Matthew S. Adams
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions