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:
- 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.
- 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.
- 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.
- 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.