For both attorneys and their clients, maintaining the confidentiality of electronically stored information (ESI) in discovery continues to be a hot-button issue. The following are some practical tips for maintaining confidentiality of ESI. The analysis begins with the nature of ESI that is subject to discovery in a typical state or federal civil action, and then consider that ESI in the context of maintaining confidentiality. With these considerations in mind, here are some tips for counsel, both retained and in-house, to consider.
- Even before a complaint is filed, counsel must consider the claims and defenses that have been or are likely to be raised. These establish the scope of discovery.
- Once the scope of discovery has been established, counsel must understand what ESI is or may be discoverable. This requires counsel to confer with the client as to the nature and location of ESI created and retained by the client or within the client’s possession, custody, or control.
- ESI complicates protection. ESI comes in varying volumes and varieties. Counsel should understand the scope and nature of the ESI that is discoverable and appreciate the difficulties that might be encountered in the preservation, collection, and review of the ESI even before discovery requests are made by opposing counsel.
- Once these topics have been identified, there should be discussion between counsel and the client about what discoverable ESI requires protection of one sort or another in the litigation. Such ESI might, for example, implicate trade secrets, personal information, or information that is deemed confidential under various statutes of regulations such as the Privacy Rule of HIPAA (Health Insurance Portability and Accountability Act).
- Next, counsel must consider how to protect “confidential” ESI. In a civil action pending in a U.S. district court, counsel should discuss appropriate protective orders with opposing and other counsel and hopefully reach agreement on the need for and content of a confidentiality order to be submitted to the assigned judge. Absent agreement, the party seeking a protective order should raise the issue such that the judge might address the relief sought at an initial scheduling conference or before any discovery becomes due.
- Counsel seeking a protective order should be prepared to demonstrate, either by affidavit or competent testimony, that good cause exists for the order. In the alternative to such proof, the parties might agree on a “blanket” protective order that might describe the general nature of the ESI to be protected and require submission of an affidavit describing that ESI.
- Counsel should also be prepared to discuss or present proofs on who might have access to protected ESI. By its nature, a protective order would typically limit access to protected ESI to the parties. However, there might be a need for a two-or-more tiered order that would go beyond limiting access to the parties but would allow access to only opposing counsel (an “attorneys’ eyes only” provision) or a retained expert who acknowledges and agrees to be bound by the protective order.
- Even assuming that the parties agree to a confidentiality order, the party seeking protection should be prepared to demonstrate the existence of good cause because (1) an adversary might challenge a designation of specific ESI or (2) a nonparty might intervene and seek access to designated confidential information.
- Finally, the proponent of confidentiality should keep in mind that there is a fundamental distinction between the production of confidential ESI between parties in the course of discovery and the use of that ESI in the litigation. For example, a party moving for or opposing summary judgment might want to use the confidential ESI in motion or opposition papers that are filed with a court. Moreover, the party might seek to introduce that ESI in trial. Presumably, these call for sealing of a docket or judicial proceeding and implicate First Amendment and common-law rights of access that require a showing of compelling need.
These tips give consideration to the many issues that counsel should keep in mind when dealing with confidential ESI in litigation. Note, however, that ESI might also be subject to the attorney-client privilege or be subject to attorney work-product protection. These additional topics implicate agreements and orders under Federal Rule of Evidence 502 and its equivalents in the states and present additional concerns that should not be overlooked by diligent counsel.
Ronald Hedges is with Dentons in New York, New York.