Although electronic discovery has been authorized by the Federal Rules since 1970, the most seasoned attorneys can get tripped up when dealing with electronic discovery issues. The Federal Rules of Civil Procedure and most states' rules of civil procedure currently allow parties to request electronically stored information.
Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served. . .
See Fed.R.Civ.P. 34(a). However, the Civil Rules Advisory Committee recognized that the rules as written were not adequate considering the new forms of technology. The Federal Rules of Civil Procedure Committee approved proposed amendments to Civil Rules 16, 26, 33, 34, 37 and 45 in April of 2005. 1 The proposed amendments to the rules have been transmitted to the United States Supreme Court with the committee's recommendation that they be approved. Many courts have felt compelled to create local rules to address electronic discovery in an attempt to dictate procedure and add clarity to an area of discovery that can baffle practitioners. When you prepare your first electronic discovery requests consider the following.
BEFORE YOU SERVE YOUR FIRST ELECTRONIC DISCOVERY REQUEST
- Identify the nature of the discovery you seek. Identify whether you are seeking electronically stored data relating to electronic mail, electronically generated documents, electrically stored documents, network messaging, meta data, download and upload logs, internet use information, address books, spreadsheets, databases, or information obtained on PDAs, for example.
- Once you have identified the type of information you want to request, consider where the information may be stored. Electronic information may be stored on an individual's computer or PDA, on a local host, at an offsite storage facility, or in user level or network archives, to name a few. It is also possible that electronic data that is believed to have been deleted exists either locally or on network storage devices.
- Preserve the discoverable information you seek. Electronic data is routinely erased as part of ordinary data management. In the event that you know that it is important to preserve electronic data, consider sending a preservation request to opposing counsel or filing a preservation request and order with the court. By sending the opposing party notice of your intention to propound electronic discovery, describing the nature and type of discovery even before you serve your request, you put that party on notice that they should not erase electronically stored data that may be responsive to the request.
- When the new civil rules are adopted, Fed.R.Civ.P. Rule 26(f) mandates the parties "discuss any issued relating to preserving discoverable information." However, in some instances, it may already be too late to recover certain kinds of data by the time the parties are conducting a Rule 26(f) conference. Furthermore, many state courts do not require the equivalent of a Fed.R.Civ.P. 26(f) conference of the parties.
SO YOU THINK YOU ARE READY TO SERVE ELECTRONIC DISCOVERY?
- Consider serving an initial round of interrogatories and requests for production that will aid you in preparing more specific electronic discovery requests. Be cognizant of limits on the number of interrogatories in procedural and local court rules. See, e.g., Fed.R.Civ.P. 33.
- Use interrogatories to establish the opposing party's policies, systems, software, maintenance, and person responsible for management of electronic data. Sample topics of interrogatories may be as follows.
- Describe every policy in effect relating to the retention and destruction of electronic data.
- Describe the configuration and design of your internal computer network system.
- Describe every piece of software for which you have a copy of, or a license to use, that is used by any computer, server, storage device, or PDA whether connected to the network or not. Please provide the full name and version of each piece of software.
- Describe your maintenance policy or protocol for all computers, servers, storage, devices, or PDAs that you owned or maintained.
- Identify all individuals responsible for management, maintenance, service, support, or upgrades related to any computer, server, storage device, or PDA you own, whether an employee, contractor, or other service provider.
- Consider serving requests for production of documents to learn information to help craft your electronic discovery requests. Helpful documents might include policies; guidelines; storage allocation; computer, server, or storage device specifications and protocol; network configuration; software manuals; hardware manuals; and network capabilities.
THINGS TO REMEMBER WHEN PROPOUNDING ELECTRONIC DISCOVERY
Understanding your case before filing electronic discovery requests is critical. It is also important to recognize your limitations and consider hiring a technology consultant or expert to assist in drafting your requests and to understand electronic data. Also keep in mind the following.
- Seek early agreement with opposing counsel concerning e-discovery issues. The scope of the agreement could avoid costly disputes later. For example, you might wish to agree upon the medium for electronic production, e.g., tape or CD-ROM; any confidentiality provisions; or the allocation of costs for duplicating the files, electronically Bates numbering material, and the like.
- Do not get in over your head by making requests that will yield information that you cannot analyze or understand. As is true with most discovery requests, you should understand at least generally what you are asking for, how you will review it, and how it may be used in your case. This is where time spent with a technology consultant can be beneficial.
- Be prepared to deal with claims of privilege or of protection. A stipulated motion for protective order may facilitate discovery of confidential or proprietary items.
- Work with opposing counsel to decide the form and manner in which the request should be produced. Be sure that the electronic data will be produced on a medium and in a file format that you and your client can read.
- Consider the cost of your request to yourself and the responding party. A single CD-ROM of document files can amount to about 10,000 pages of material, or about 3 banker's boxes. If the material is not germane, your client has borne some substantial costs for you to make that determination. Also, if responding is particularly costly, the responding party may try to limit your discovery. See Fed.R.Civ.P. 26(b)(2), 26(c).
- Remember to include specific information concerning electronically discoverable information when issuing subpoenas. This reminds document custodians that you are looking for electronic files or data.
- Be aware of the boomerang effect of discovery! Be careful what you ask for, you may be served with the same discovery requests.
Electronic discovery has the potential to make or break any case. A proper understanding of your case and technology will help you identity, obtain, and analyze electronically shared information.
1For a complete discussion of the suggested changes see: Electronic Discovery: Best Practices, New Rules, and a Tight Budget, ABA, The Young Lawyer, Volume 9, Number 6, March 2005; see also www.uscourts.gov/rules.
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About the Author
Mr. Norman is an associate at Williams, Porter, Day, & Neville, P.C. in Casper, Wyoming, where he focuses primarily on insurance and corporate defense. Mr. Norman is admitted to practice in Wyoming and Colorado. He is a member of the American Bar Association, American Trial Lawyers Association, and Wyoming Trial Lawyers Association and currently serves as the Vice-President of the Natrona County Bar Association.
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