ESI in environmental enforcement: Less is more?

Vol. 45 No. 4

Justin Savage and Emily Kimball are respectively a partner and an associate at Hogan Lovells US, LLP.

The rise of electronically stored information (ESI) poses a unique challenge to environmental litigators. Even before the era of Big Data, environmental litigation was complex. Few areas of the law rely so heavily on multifaceted and intricate statutes and regulations. Armies of acronyms march across the pages of environmental briefs, challenging the readers’ attention. Discerning the facts poses equally daunting challenges. Expert testimony is the norm.

This article discusses recent decisions on managing the ESI avalanche in environmental litigation, focusing on two enforcement actions brought by the U.S. Department of Justice (DOJ) on behalf of the U.S. Environmental Protection Agency (EPA), United States v. DTE Energy Co., No. 10-cv-13101-BAF-RSW, 2011 WL 3706585 (E.D. Mich. 2011), rev’d 711 F.3d 643 (6th Cir. 2013), and In re Oil Spill by the Oil Rig Deepwater Horizon, 10-md-2179 (E.D. La. filed Aug. 10, 2010).

The continued growth of ESI

In the past decade, electronic discovery or “e-discovery” has extended the traditional paper discovery process to encompass ESI including e-mail, instant messages, word processing files, spreadsheets, social networking content, and any other electronic information that may be stored on desktops, laptops, file servers, smartphones, employees’ home computers, and other electronic platforms. Not only is ESI more voluminous than hard copy documents, but it is also more dynamic. For example, metadata, a type of non-apparent information, can be modified simply by opening and closing a document. The rise in e-discovery, which now dwarfs paper discovery in both civil and criminal litigation, is tied primarily to the exponential generation of ESI.

Humanity presently creates as much digital information in two days as was created from the beginning of computing until 2003. Consider the following: The total amount of digital information created grew from 494 billion gigabytes in 2008 to 800 billion gigabytes (900 exabytes or 0.8 zettabytes) in 2009 (a 62 percent increase), to 1200 billion gigabytes (1,350 exabytes or 1.2 zettabytes) in 2010. Wikibon Blog, Information Explosion and Cloud Storage (last visited Dec. 3, 2013); All Too Much, Special Report: Managing Information, The Economist, Feb. 25, 2010.

A 2012 study by the International Data Corporation predicts that from 2005 to 2020 the digital universe will grow by a factor of 300, from 130 exabytes to 40,000 exabytes, or 40 trillion gigabytes. That represents more than 5,200 gigabytes for every man, woman, and child in 2020 and assumes that the digital universe will double nearly every two years between 2012 and 2020. John Gantz and David Reinsel, “The Digital Universe in 2020: Big Data, Bigger Digital Shadows, and Biggest Growth in the Far East” (Dec. 2012).

The Radicati Group, a technology market research firm, estimates that as of 2013 there are over 2.4 billion e-mail users worldwide, including both business and consumer users. Worldwide e-mail traffic, including both business and consumer e-mails, is estimated to be over 182 billion e-mails per day by the end of 2013, growing to nearly 207 billion e-mails per day by the end of 2017. Email Market 2013-2017 Report, The Radicati Group, Inc. (Nov. 2013). Likewise, social media accounts, including both consumer and enterprise accounts, will grow from 3.1 billion in 2012 to 4.9 billion by 2016 and individual users are expected to rise from 1.6 billion in 2012 to 2.3 billion in 2016. Social Media Market 2012–2016 Report, The Radicati Group, Inc. (June 2012).

Limiting the production of ESI in an environmental enforcement case: United States v. DTE Energy Co.

The explosion in ESI is well illustrated in United States v. DTE Energy Co., No. 10-cv-13101-BAF-RSW, 2011 WL 3706585 (E.D. Mich. 2011), rev’d 711 F.3d 643 (6th Cir. 2013). There, DOJ brought an enforcement action on behalf of EPA against DTE Energy, an electric utility, alleging violations of the Clean Air Act’s New Source Review permitting provisions. DTE Energy served numerous requests for production that required EPA to search through past and present rulemaking, permitting, and enforcement files for responsive documents. In addition to providing past productions from other cases, EPA agreed to produce information from agency headquarters and the regional EPA office overseeing the case. In conducting its search, EPA identified over 100 personnel in ten EPA offices as having potentially responsive documents. The magnitude of the ESI collection required EPA IT personnel to expend over 240 hours to manage the technical aspects of the discovery production. Federal employees spent over 3,000 hours of time searching for, collecting, reviewing, and producing documents in response to defendants’ requests.

However, EPA moved for a protective order to preclude additional nationwide discovery of the other EPA regional offices and components. In seeking this protective order, EPA argued that nationwide discovery would be unreasonably burdensome and estimated that it would need to search for and review over 1.946 million e-mails, over 1,434 gigabytes of loose e-documents, and over 5,119 linear feet (nearly a mile) of paper documents to identify potentially responsive documents.

The court granted the protective order against DTE Energy’s request for nationwide discovery, with certain provisos that are not relevant to this discussion. While there is no written opinion, the magnitude of the request may have played a role in the decision. Another important factor may have been that EPA argued that a nationwide production would have been duplicative because it agreed to produce information from EPA headquarters, which oversees the other regions.

The take-away lessons of DTE Energy are significant. No large institutional litigant, including the government, can simply refuse to produce a significant amount of ESI. The question in DTE Energy—and many other cases—will likely be “how big is too big of an ESI production”? The line in each case may differ depending on the circumstances. Judges will continue to rely on familiar discovery factors such as burden, cost, fairness, reasonableness, and proportionality.

Time limits on civil trials: In re Oil Spill by the Oil Rig Deepwater Horizon

While ESI discovery provides more information, there may be less time to present it. Federal judges are imposing time limits on civil trials. See Benjamin Weiser, A 9/11Judge Sets a Month as a Time Limit for a Trial, N.Y. Times (Apr. 27, 2011). Judges may be reacting to the age-old tendency of lawyers to “over-try” their cases, a propensity made worse by ESI deluge.

Time limits on trial were recently imposed in the Deepwater Horizon litigation, In re Oil Spill by the Oil Rig Deepwater Horizon, 10-md-2179 (E.D. La. filed Aug. 10, 2010). The case involves consolidated litigation brought against companies due to the 2010 oil spill in the Gulf of Mexico, including claims brought by EPA under the Clean Water Act. The parties produced a vast amount of ESI, amounting to millions of pages were it all ever printed out. Before the second phase of the trial in the case was held in October 2013, the presiding judge, the Honorable Carl Barbier, imposed time limits, including an order specifying the exact number of minutes each party would be allowed for opening statements. See Amended Pre-Trial Order No. 54, In re Oil Spill by the Oil Rig Deepwater Horizon, 10-md-2179 (E.D. La. Jan 4, 2013).

This time-limitation trend is also evident in recent bellwether trials that have occurred in mass tort litigation. For example, in the pharmaceutical product liability mass torts case In re Vioxx Products Liability Litigation, 05-md-01657 (E.D. La. filed Feb. 17, 2005), U.S. District Judge Eldon E. Fallon strictly limited the trial time for each side to a maximum of seven days for each side to present its case. As a result, each of the Vioxx bellwether trials was tried in less than three weeks. Similarly, in In re Propulsid Products Liability Litigation, 00-md-1355 (E.D. La. filed Aug. 7, 2000), the trial was completed in a total of eight days due to similar trial time limits and case management techniques.

The significance of time limitations cannot be overstated in the age of ESI. Because of the risk of a clock being imposed on a trial, counsel will need to carefully analyze how to cull ESI into a manageable presentation. Factors to consider include the technical capabilities of the court hearing the matter, the time investment needed to present the ESI, and whether huge volumes of ESI can be reduced to a more manageable form. For example, counsel faced with numerous e-mails or spreadsheets might consider preparing a summary of the ESI under Federal Rule of Evidence 1006. That rule allows the proponent of voluminous information to prepare a summary, chart, or calculation of the information in lieu of introducing each underlying document into the record.

Of course, whether time limits are reasonable in any case requires a careful balancing of the competing interests in fairly allowing the parties to present their cases and judicial economy. Excluding a key witness because the clock ran out seems unfair. But forcing a judge or jury to sit through duplicative and tedious proof harms the judicial process as well. When dealing with a large volume of ESI, practitioners facing trial time constraints will need to streamline the presentation of their evidence and present it in the most compelling and least cumulative manner possible.

ESI and attention economics in environmental litigation: Keep it simple stupid

Nobel-prize winning economist Dr. Herbert Simon wrote that: “a wealth of information creates a poverty of attention.” Herbert A. Simon, Designing Organizations for an Information-Rich World, Speech at the Johns Hopkins University and Brookings Institution Symposium, in Computers, Communication and the Public Interest 37, 40 (Martin Greenberger ed., 1971). An entirely new field of inquiry, “attention economics,” grew from that observation. It posits that information competes in our minds for the scarce resource of attention.

ESI production and trial presentation can disrupt the attention economy of the judicial system, resulting in the types of judicial limits on ESI discussed in this article. To minimize the risk of these judicial interventions, environmental litigators should explore opportunities to reduce the ESI burden. While often ignored, Federal Rule of Civil Procedure 29 grants the parties wide latitude on reaching discovery stipulations. Consider streamlining ESI with Rule 29 stipulations on the scope and manner of production. At trial, strive toward the minimal number of exhibits—no one can remember several hundred e-mails, spreadsheets, and other ESI. Of course, uncooperative opposing counsel can make it difficult to reach agreements governing discovery and trial, but that is no excuse for failing to try. Above all else, keep it simple stupid.

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