Volume 18, Number 2
Discovery of Electronic Documents
By Sheila J. Carpenter and Shaunda A. Patterson
Essentially, the rules that govern the discoverability of electronic documents are identical to those that guide the courts in their rulings regarding traditional documents. Electronic documents are subject to the same protections as traditional documents. This article surveys the legal concepts and practical considerations both counsel and their clients must grasp in this new era of discovery.
Rule 34 of the Federal Rules of Civil Procedure allows any party to serve on any other party a request to produce, and permit the party making the request to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 26(b) and that are in the custody or control of the party on whom the request is served. The inclusive description of "documents" makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can be made usable by the discovering party only through respondent’s devices, respondent may be required to use his devices to translate the data into usable form. What have courts ordered parties to produce? The fact that information has been produced in traditional form does not preclude production of identical information in electronic format. In some cases, courts have required such production to prevent the requesting parties from having to bear the cost of any necessary encoding of such information for analysis. Courts have reasoned that because much of our information is transmitted by computer, it is not unreasonable to require a party to produce the information on computer disk for the plaintiff. Courts sometimes require parties to make an extensive effort to be certain that document requests are satisfied. For example, a court may require conversion of the format of electronic documents, reasoning that the normal and reasonable translation of electronic data into a form the discovering party can use should be the ordinary and foreseeable burden of a respondent absent a showing of extraordinary hardship. A trial court may also require a party to create or manufacture data or documents previously nonexistent. For example, a court has required a plaintiff to create a computer tape of information that the plaintiff had printed from its computer and produced to the defendant so that the information could be read by the defendant’s computer.
Courts recognize that inaccessibility does not relieve a party from its responsibility to make the information available, explaining that Rule 34 contemplates that when data is in an inaccessible form, the party responding to the request for documents must make the data available.
Any analysis associated with the prospect of discovery into a party’s computer or hard drive must consider the risk of damage to a party’s system and the exposure to confidential information. However, inspection of another’s hard drive in an attempt to retrieve data purportedly "purged" from a system may be allowed if the requesting party presents evidence of the likelihood of retrieving purged information, and of there being no other less intrusive manner to obtain the information. In such an event, the order must define parameters of time and scope, and must place sufficient access restrictions to prevent compromising confidentiality and to prevent harm to the defendant’s computer and databases.Duty to preserve. The risk of spoliation of electronic documents is more pronounced than with traditional ones. However, the rules for when a duty to preserve data arises and what sanctions attach in the event of spoliation are the same for electronic and traditional documents. A party does not have a duty to preserve evidence unless it has notice of its relevance. Specifically, counsel should be aware that a complaint "may alert a party," and that a discovery request places a party on notice that particular information is relevant or sought.How to protect electronic documents from discovery. Certain documents, regardless of their form, will be protected from discovery: those subject to the attorney-client privilege, the work product doctrine, and trade secret protections. Before litigation arises, clients should categorize those files believed to be protected by privileges to avoid inadvertent disclosures in responding to discovery requests. E-mail to and from counsel should be labeled "privileged."
Become familiar with your client’s computer system. One bar committee advises counsel to ask their clients the following questions to ensure that the client will preserve and collect all potentially relevant electronic information.
• Where are all of the potential sources of electronic information?
• What is the client’s retention policy, and what procedures does the client have in order to enforce the policy?
• How is information stored on the system?
• What are the backup procedures used by the client? Are copies made daily, weekly, or monthly? How is the backup material stored? Is the information compressed during the backup procedures? How frequently is the media used for backup recycled, if at all?
• When information is deleted from the system, is it merely designated to be overwritten, or does the system have a program that actually overwrites the deleted file with a garbled date and random characters? Does the system have an "undelete" program that can restore deleted files?
Advise clients to institute/follow a records retention policy. The benefits to a company in developing and following a sound records retention policy are twofold: it prevents obsolete, unnecessary, or potentially harmful documents from lying around just long enough to be subject to inevitable discovery; and it provides a defense if unwarranted allegations of spoliation arise. Additionally, when a document destruction issue arises, a party can assert that the document was destroyed in good faith.
Advise clients to invest in software that fully erases deleted data. When a user elects to delete data from his or her computer, operating systems typically do not actually remove the information from the file or hard drive. Instead, the file’s address is merely changed, and the information is retrievable for some time. These deletion programs are useless if backup disks are made and kept indefinitely. Backup information should have a business purpose.
Special concerns associated with e-mail. Because e-mail communications are more casual than traditional avenues of correspondence, users often engage in a reckless exchange. A company can do three basic things to minimize negative ramifications from the use of e-mail: adopt a formal document retention policy specifically for its e-mail system; organize or archive its e-mail system so that important business-related and privileged documents can be retrieved without confusion or delay; and train its employees to exercise care in drafting e-mail messages. Counsel should require that the client’s employees be trained in accordance with the company-wide e-mail policy on appropriate usage, which should include the following provisions:
• The e-mail system is the property of the employer.
• E-mail is to be used only for valid business purposes.
• E-mail must not be used for personal matters or to comment about others.
• E-mail correspondence is to be kept confidential by the employee/user.
• The employee agrees and is aware that e-mail may be monitored and disclosed by the employer.
• Humor and sarcasm should not be communicated in e-mail.
• Employees should not compose e-mail messages when they are angry.
• E-mail message recipient lists and text should be thoroughly reviewed by the composer for accuracy before being sent.
• Employees should archive important messages by subject and delete groups when no longer needed.
• Archived and current messages will be subject to review and production in litigation.
• E-mail messages that are not archived will be deleted 30 days after they are sent.
Moreover, the policy should include penalties or disciplinary actions that will be enforced if an employee uses the system in an inappropriate manner.
Sheila J. Carpenter is a partner and Shaunda A. Patterson is an associate in the law firm of Jorden Burt Boros Cicchetti Berenson & Johnson LLP in Washington, D.C.
- This article is an abridged and edited version of one that originally appeared on page 64 of The Brief, Summer 2000 (29:1).