We live in an era of electronic discovery (e-discovery), as virtually all business information and communications are digital. Indeed, so much information is electronically stored that it is only a matter of time before e-discovery swallows all of discovery. How do you handle e-discovery at the start of a case? Prepare as much as possible, know the issues, and try to ask the right questions or at least ask lots of questions (and keep asking them throughout the discovery process).
Electronically stored information (ESI) is “any information created, stored, or best utilized with computer technology of any type.” This includes the more traditional “documents,” such as word-processing files, spreadsheets, presentations, graphics, animations, images, emails, and instant messages (including attachments). It also includes audio, video, and audiovisual recordings, voicemails stored on databases, and structured/transactional data in a variety of forms. To consider just some of the more common examples, ESI can reside in networks; computers and computer systems; servers; archives; backup or disaster-recovery systems; compact discs; diskettes; hard drives; flash drives; tapes; printers; the Internet; and on BlackBerry devices (and other PDAs), handheld wireless devices, cellular telephones, pagers, fax machines, and voicemail systems. The list of ESI can go on virtually endlessly and seemingly grows more complex with every new development; cloud computing is only the latest in a long line of technologies that have added complexity to the litigator facing e-discovery challenges.
Why Does the “E” Matter So Much?
As in discovery more broadly, e-discovery issues fundamentally involve the process of locating, reviewing, and producing non-privileged materials that are responsive to discovery requests. But, electronically stored information poses challenges beyond traditional discovery. ESI can be voluminous and difficult to locate; it also frequently includes metadata, which is information about a document or file that the computer stores but that may not be accessible to the ordinary user. In addition, ESI easily is modified or deleted, and information systems, including systems that frequently are automated and can modify, delete, and overwrite it (absent timely intervention). Moreover, ESI’s dynamic character easily can lead to the pitfalls of spoliation, which is the inadvertent or intentional destruction of relevant evidence after a duty to preserve it has attached. Spoliation is a rapidly developing area of law that is of vital and growing significance to judges and parties. Cases can be won and lost based on preservation, collection, and production failures. E-discovery sanctions motions can complicate a case and can reach not only parties but also their outside and in-house counsel. The costs of e-discovery can be enormous, particularly at the stage when ESI must be processed, loaded onto a review tool, reviewed, and produced. However, proper and timely analysis and an understanding of the constantly developing technologies and methodologies can reduce or mitigate many of these costs and risks.
Is It All Bad?
Not necessarily. ESI can be easier to store, produce, review, and use than traditional non-digital forms of data storage. For example, “boxes” of documents can be stored online, retrieved with a few keystrokes, and produced on a single ROM (read-only memory) device such as a DVD or a hard drive or even uploaded to an online depository. Large volumes of material can be searched for concepts or keywords, and archived data can be tabulated, modeled, or analyzed. Unlike paper documents, ESI is far more persistent; for example, drafts of documents and other temporary materials that in the past may have been shredded or destroyed are now routinely preserved. For better or for worse, even ostensibly “deleted” ESI can linger in the form of backup tapes; archives; removable media; erased and fragmented data; metadata; and other such spectral forms. All of this can add up to a more complex but (in the right circumstances) arguably richer data environment for the litigator.
Getting a Handle
Early on in litigation or investigation, it is critical to analyze your client’s data. You should have an understanding of what it is; who created it; how it is structured; where and how it is stored; and analyze potentially difficult data sources before they cause problems down the road. At the very outset, you will want to analyze preservation issues; you should evaluate the universe of data and documents that your client is under a duty to preserve and take appropriate measures. You also should identify key documents and subject matters, key players (both for the client and the other side), and any other information that will assist you in targeting your discovery efforts. Particularly, if electronic keyword filters will be employed, you should start analyzing early on the language that the key players (both friendly and opposition) use to discuss the critical subject matters at issue.
In litigation, you also will want to conduct an early offensive analysis to try to have an understanding of the data and documents you might expect (and want) from the other side. This frequently is conducted through analysis of your client’s documents and communications with the opposing party (because you likely won’t yet have access to discovery). This involves identifying the substantive topics that will be central to the matter, whether it is litigation or investigative. In addition, you should identify key variables that likely are to define the scope of discovery, including subject matters and/or custodians. This picture likely is to evolve as the case progresses, but early analysis is crucial.
As you develop your preliminary understanding (both offensive and defensive) of relevant data sources and types, you should consider the likely magnitude of the e-discovery effort for your client and for the opposing party. Projects of different scales can demand very different solutions. Identify your key custodians and data sources, and analyze the outer boundary limits to the universe of potentially (or marginally) relevant custodians, databases, and repositories of standalone documents such as shared drives. Consider the point at which discovery costs will become disproportionate to the scale of the matter, and develop arguments (preferably supported by quantitative measures) to support your view as to the reasonable limits to discovery.
Initial Conference and E-Discovery Agreements
Much of the preparation listed above will assist parties in the initial conference and discovery meet-and-confer sessions. Depending on the jurisdiction, parties may have to disclose early on sources of ESI, custodians, and their plans with respect to ESI production from the other party. At the conference, parties should try to agree on various e-discovery topics, such as the scope of e-discovery (time periods, custodians, sources of standalone data, and metadata are frequent issues for discussion); the process for identifying, reviewing, and producing responsive documents; and the form of electronic production (e.g., handling metadata and native production). Other issues to consider at this stage include whether to use filtering, manual review, or a combination of the two; what opportunities or duties that the parties will have to supplement or revise their agreed procedures as discovery progresses; and what will happen if privileged or trial-preparation materials are inadvertently disclosed (a subject that continues to require analysis and discussion between the parties, even with the passage of Federal Rule of Evidence 502). The specifics of filtering alone can occupy many rounds of negotiation in complex cases, and it is frequently advantageous to test early and often to support your positions regarding the appropriate and inappropriate approaches to discovery in the case.
Early agreement on these issues always is useful to clarify the parties’ obligations, and it is frequently easiest to reach agreement before problems arise rather than after problems occur. In more complex cases, discussions between the parties likely will continue throughout the discovery process, and courts increasingly expect a level of communication between parties that would have been unusual in the era of paper discovery (see, e.g., William A. Gross Constr Assoc. v. Am. Manuf. Mut. Ins. Co., 256 F.R.D 134 (S.D.N.Y. Mar 19, 2009) (“This opinion should serve as a wake-up call to the bar of this District about the need for careful thought, quality control, testing and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information.”) or the Sedona Conference Cooperation Proclamation.
Want More Information?
With the ever-increasing role of ESI in discovery, it is critical to stay informed. You should look into your jurisdiction’s ESI guidelines and discovery rules, as many jurisdictions have become increasingly specific in the guidance that they provide to parties concerning e-discovery issues (see, e.g., the Delaware Court of Chancery Guidelines for Preservation of ESI, or the District of Kansas’s particularly detailed directives, which include a list of 50 suggested questions for the Rule 26(f) conference). Review existing case law, such as the Zubulake and Pension Committee decisions, and cases in your jurisdiction. See, e.g., Micron v. Rambus, 2011 WL 1815975 (Fed. Cir. May 13, 2011) and a companion case, Hynix v. Rambus, 2011 WL 1815978 (Fed. Cir. May 13, 2011); Zubulake v. UBS Warburg, No. 02 Civ. 1243 (SAS), 2004 U.S. Dist. LEXIS 13574, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) or the other Zubulake decisions; Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., No. 05 Civ. 9016, 2010 U.S. Dist. LEXIS 4546, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (as amended May 28, 2010). Also, stay abreast of broader resources, such as materials published by the Sedona Conference.
James Worthington and Mor Wetzler are associates with Paul, Hastings, Janofsky & Walker LLP in New York, New York.