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The World of e-Discovery or How I Learned to Stop Worrying Some people keep close tabs on the obituaries in the local paper, but that section of the newspaper did not even refer to an important, yet, relatively unnoticed death, earlier this year: the death of the telegram.1 The telegram died from lack of use, left behind in the world of email and instant messaging. Today, almost all business communication is conducted electronically; researchers at the University of California at Berkeley announced that 93 percent of all information created during 1999 was generated in digital form, on computers from e-mail to word processing.2 Since that time, computer use has increased, resulting in significant changes over the last 25 years. Despite this revolution in the mode of communication, lawyers and courts struggle with how to handle these new types of issues. These days, issues like ghosting drives and metadata have moved from the Star Trek convention to the courtroom. Unfortunately, practitioners’ understanding of these concepts may not have followed as quickly. Therefore, to put it in more accessible terms, this article uses quotes from the American Film Institute’s 100 most memorable movie quotes from the first 100 years of film to frame our electronic discovery discussion.3 Remarkably, several of those quotes illustrate fundamental issues of electronic discovery. No. 2“I’m going to make him an offer he can’t refuse.”
The question then becomes how to best prepare for this shift. The answer is not to wait, but to be proactive about learning these issues and the specific needs of your clients.
No. 7 “All right, Mr. DeMille, I’m ready for my close-up.” The key to avoiding these situations is forward thinking and preparation. Once a lawsuit is filed, attorneys should direct the client to suspend those document retention and destruction policies to prevent discarding relevant data. The information technology (“IT”) staff should remove backup tapes from rotation and suspend automatic purges of servers, especially e-mail servers. Whatever steps are taken, the company must document those efforts in case it has to explain its actions later. Such documentation may include detailing the following information: the origin of the computer evidence, what computer the data is from, what hard drive, the location of the computer, who the computer belonged to, who was authorized to use the computer, and how the drive was imaged. Continuously documenting the electronic data collection efforts assists in collecting less irrelevant data and ensures that essential data that should be collected is not overlooked. If the company is worried about data on particular computers or servers, then perhaps the hardware in question can be taken offline. In such a case, programs containing discoverable electronic data should not be executed. This process can be complicated, and given the demands on the IT staff, it may be useful to consider using outside vendors, even though the IT staff is knowledgeable about the computer equipment, networks and firewalls. The company’s IT staff already has full-time jobs and may not have time to collect electronic data. Conflicts of interest and independence issues abound. Also, IT staff generally does not have experience with the various types of forensics software that exist for different purposes, uses and effectiveness. Perhaps most critical, the IT staff will not have deposition or court experience to defend their work, as experts routinely do. In all, responding to these issues requires a team effort, which leads to the next quote.
No. 11 “What we’ve got here is failure to communicate.” An effective and reasonable document preservation program serves as an active and early step in preparing for and responding to broad electronic discovery demands. The guidelines of a program should include consideration of the business, regulatory and tax needs of the organization, including the need to maximize electronic storage space on the entity’s server. Thus, a company could establish a document retention policy with guidelines retaining only e-mails with business record significance to avoid the dangers of disclosing sometimes damaging information that might be contained in personal communications. Of course, any system should include provisions for “litigation holds” to prevent destruction of documents related to ongoing or anticipated litigation. The presence and routine compliance with such a system, however, should be a considerable factor in any spoliation analysis. As a guide, the Sedona Conference has released its “Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age,” which contains approaches to managing electronic data.7 The need to comply with any document preservation program cannot be overstated.8 It is imperative that any retention/destruction policy not only be consistently practiced, but also routinely documented and audited. In 2004, one court ordered defendants to pay costs relating to the spoliation as well as $2.75 million in monetary sanctions for destroying relevant e-mails.9 Although the court had ordered preservation of all potentially relevant documents, some of the defendants’ employees continued to delete e-mail for two years after the court order.10 Granting the motion for sanctions, the court precluded the defendants from calling those key employees who failed to follow the retention policy as witnesses at trial.11 A good first step occurs before anything actually arrives: understanding the structure of the client’s organization. This first step leads to identifying relevant electronic data and the sources. This means meeting with the client’s IT staff and its personnel so that, when the need arises, the client can begin to preserve data immediately. At a minimum, this meeting should cover: the computer systems in use, the document retention program in place, relevant legacy problems, the nature of any encrypted data and the physical location of any potentially discoverable data.12 Another significant hurdle may be “buy in” from the corporate management, but with Sarbanes-Oxley, shareholders suits, and other motivation, corporate management should understand the need to address these issues. In all of these discussions, it is important to remember how pervasive a single electronic file or e-mail can be and the variety of electronic information that can exist within one company. A single piece of electronic information, like an e-mail, can be stored in numerous places, ranging from earlier versions and drafts of documents to “deleted” e-mail stored on back-up tapes. Every time a division gets a new piece of software or an employee gets a new computer, someone at the company should be considering the preservation issues, including what needs to be preserved, how it should be preserved, and where it should be preserved. Underlying all of these considerations is the reality that the costs of electronic discovery can be substantial.13 If not handled early, these questions can become quite thorny. The questions then will become where is the information that the company once had?
No. 44 “I see dead people.” Several issues arise when considering the duty to preserve evidence.15 Generally, no duty arises before the litigation is filed, threatened or reasonably foreseeable unless that duty is voluntarily assumed or it is imposed through other means. The duty to preserve documents or tangible evidence in a given instance can arise from the existence of pending, threatened or reasonably foreseeable litigation. This duty also can arise from a number of other sources, including a contract, a voluntarily assumed duty, a statute or regulation, or an ethical code.16 Electronically-stored information and paper documents are different.17 The ABA Task Force has amended its Civil Discovery Standards to account for electronic evidence. Standard 29 has been modified to provide a checklist of sources of electronic data that should be preserved to avoid a spoliation claim. That amendment provides: Electronic data as to which a duty to preserve may exist—and the platforms on which, and places where, such data may be found—include: (a) databases; (b) networks; (c) computer systems, including legacy systems; (d) servers; (e) archives; (f) back-up or disaster recovery systems; (g) tapes, disks, drives, cartridges and other storage media; (h) laptops; (i) personal computers; (j) iInternet data; and (k) personal digital assistants.18 Additionally, the amendment to Standard 29 adds the language, “electronic data as to which a duty to preserve may exist include data that may have been deleted, but can be restored.”19 Voicemail also may be included in electronic sources for clients to preserve, even though it is not included on the amendment to Standard 29. Voicemail can be stored as e-mail attachments, on personal digital assistances, and cell phones.20 Technology is advancing every day, and the ability to search voicemail and video is here. Unlike shredding or burning a paper document, using the “delete” key does not necessarily discard an electronic document. The electronic document is likely to remain in various locations. Additionally, unseen information called metadata is contained in electronic documents.21 The metadata does not appear on paper documents or on the computer screen.22 For example, metadata embedded in a Microsoft Word document includes recent changes (and which computer made them), a listing of the last ten authors and comments.23 This metadata can be particularly important where issues regarding revisions to documents are at issue or where establishing that a specific individual had knowledge of such a document or item of information is crucial.24 Also, paper documents and electronically stored information are organized differently. Since electronic documents can be searched by name, key phrase or date, one can organize the document review chronologically, by sender, or by conversation topic. The headache of sorting through documents as they appear in a pile is somewhat eliminated. That said, electronic documents are not always easier to sort than paper. They can be harder to find, harder to read and lost completely, if terms are misspelled or unknown. In sum, gone are the days when paper documents were found only in someone’s office or briefcase. Finding documents today is much more complicated. Today you have to look, and today counsel has to explain to the opposition in litigation how information is maintained.
No. 64 “Gentlemen, you can’t fight in here! This is the War Room!” Second, attorneys should negotiate the terms and schedule for a rolling production. A rolling production affords the requesting party the benefit of receiving documents sooner than it would otherwise. In turn, a rolling production allows the responding party extra time to review the voluminous information, before production. Further, attorneys should negotiate the format of the electronic data to be produced. Similarly, attorneys should discuss the protocol for inadvertent disclosure of privileged electronic documents. If the opposing side has advance notice of these procedures, then attorneys may be able to prevent the accidental viewing of the privileged document. In these types of situations, a little foresight can avoid problems and situations down the road.
No. 61 “Say ‘hello’ to my little friend!” Recently, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committee on Evidence Rules, and proposed a revised Rule 502 of the Federal Rules of Evidence. Under the new rule, inadvertent disclosure of privileged or protected information during discovery would constitute a waiver only if the party did not take reasonable precautions to prevent disclosure and did not make reasonable and prompt efforts to rectify the error. The proposed new rule was published for public comment in August 2006.25 And then there is the privilege log. Privilege logs in the e-discovery universe can be very large – several thousand entries are not unusual. As such, it is often difficult to produce such logs quickly. Therefore, it may be helpful to negotiate a several week extension (if not several months) before any privilege log is due.
No. 91 “Who’s on first.” Each project (and its incumbent challenges) will differ, but potential steps for practitioners include:
In truth, the time to start is now or maybe even yesterday. The level of technology in the workplace signals that electronic discovery is here to stay, and the courts are well aware of the parties’ responsibilities. A lack of understanding means pitfalls (and opportunities) for all lawyers. Electronic discovery can be a useful tool against unwary opponents in the litigation process. Understanding these issues can lead to a better result for clients and – equally important – compliance with the appropriate obligations. David Chaumette is a partner at Shook Hardy & Bacon LLP. His commercial litigation practice focuses on securities and intellectual property issues. Chaumette sits on the board of the Houston Bar Association and is a past president of the Houston Young Lawyers Association. He spends too much time reordering his queue on Netflix. Chaumette received degrees in aerospace engineering from Princeton University and Stanford University. He graduated from The University of Chicago Law School and clerked with Judge Lynn N. Hughes on the Southern District of Texas. Michael Terry is an account executive with Fios, Inc. He has consulted and advised Fortune 100 in house counsel and Am Law 100 outside counsel on the strategic and tactical elements and the quantifiable business case assessments of risk, time and costs on ESI for over 10 years. Terry received his B.S in economics from Vanderbilt and his MBA from the Kellogg School of Management.
Endnotes 1. “STOP — Telegram era over, Western Union says,” February 2, 2006. (http://www.msnbc.msn.com/id/11147506/) 2. Kenneth J. Withers, Federal Judicial Center, Electronic Discovery (presentation at National Workshop for U.S. Magistrate Judges, June 12, 2002). 3. The complete set of AFI’s 100 Movie Quotes from 100 Years of Film can be found at www.afi.com/tvevents/100years/quotes.aspx. 4. There have been numerous articles written about the new rules and their application. A complete set of the rules and their comments can be found at www.uscourts.gov/rules/EDiscovery_w_Notes.pdf. 5.See Williams v. Sprint/United Management, 230 F.R.D. 640 (D. Kan. 2005). 6.See Zubulake v. UBS Warburg, 217 F.R.D. 309, 312 (S.D.N.Y. 2004). 7. A copy of the Guidelines is available at the Sedona Web site: http://www.thesedonaconference.org/ publications_html. 8.In re Prudential Sales Practices Litigation,169 F.R.D. 598, 615 (D.N.J. 1997). 9.United States v. Phillip Morris USA Inc. f/k/a Philip Morris Inc., 2004 WL 1627252 (D.D.C. July 21, 2004). 10.Id. 11.Id. 12. The real first step is even understanding the vocabulary of electronic discovery. For example, “legacy data” is data which is read by systems no longer in use by the client in question, such as WordStar or Lotus 1-2-3. This data might be relevant, but hard to access. 13. Texas Rule of Civil Procedure 196.4 allows for costs to be shifted to the requesting party after objection and subsequent production when “extraordinary steps” are necessary to retrieve and produce information. Although there is little case law on this provision, there may be more in the future. See In re Lowe’s Companies, Inc., 134 S.W.3d 876, 880 (Tex. App. – Houston [14th Dist.] 2004, orig. proceeding). 14.Trevino v. Ortega, 969 S.W.2d 950, 955 (Tex. 1998) (Baker, J., concurring). 15. Judge Scheindlin has written a comprehensive article on sanctions in e-discovery cases. Shira A. Scheindlin and Kanchana Wangkeo, Electronic Discovery Sanctions in the Twenty-First Century, 11 Mich. Telecomm. Tech. L. Rev. 71 (2004). 16.Trevino v. Ortega, 969 S.W.2d 950, 955 (Tex. 1998) (Baker, J., concurring). 17.See Robert A. Creamer, Ethics and Lawyer Liability Issues in Electronic Discovery (May 13, 2005) at 1-2.(on file with author). 18. Standard 29. Preserving and Producing Electronic Information. A. Duty to Preserve Electronic Information, Draft Amendments to ABA Civil Discovery Standards, October 2003. 19. Id. 20. Paul D. Boynton, Voicemail Poised to Become the Next Target of E-Discovery, Lawyers Weekly USA, July 2003, available at http://www.lexisone.com/news/nlibrary/lw070003z.html. 21. Experienced practitioners may distinguish metadata from embedded data, such as the formulae in Excel spreadsheets. Unfortunately, some of the cases do not follow this distinction. See, e.g., Williams v. Sprint/United Management, 230 F.R.D. 640 (D. Kan. 2005). 22. The BTK was caught, in part, because of metadata on a disk he had delivered to a local television station. The police used the disk to track BTK to a local church, and to Dennis Rader, president of the church council, who had recently used the computer. Monica Davey,Computer Disk Led To Arrest In Killings, Pastor Says, New York Times, March 2, 2005, at A 12. 23. Payne Consulting Group, Hidden Bounty, ABA Journal, July 2004 at 27. 24.See Grace V. Bacon, The Fundamentals of Electronic Discovery, 47 B. Bar J. 18, 19-20 (2003). 25. A copy of the full report of the Committee may be found at http://www.prestongates.com/images/pubs/ DATG/EV05-2006.pdf.
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