In view of the new rules and the explosion of e-discovery case law that has preceded them, those of us who are not yet e-literate must become so immediately, as nearly every client today has a hard drive, an e-mail account, and a PDA. While the subject of e-discovery can fill volumes, we offer four key points for tackling discovery challenges in the electronic era.
Know your client’s systems
Rule 26(f) requires that parties confer and provide the court with their views about “any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”
To have an informed, productive exchange, lawyers must know their clients’ and their service providers’ universe of electronically stored information, including, for example, the schedule of any back-up and auto-delete programs. Lawyers must be able to identify whether potentially relevant information is stored on old, “legacy” systems no longer used by the client, and the extent to which relevant information is “not reasonably accessible because of undue burden or cost” under new Rule 26(B)(2).
In some cases, the party requesting discovery of such “inaccessible” information must bear some or all of the costs of production, but a responding party must make a specific showing of inaccessibility for cost-shifting to occur under Rule 26. Therefore, attorneys need to understand what it means when electronic records are, for example, “offline” (stored on removable media – typically kept off-site for disaster recovery), “near-line” (typically stored on removable media such as optical disks or magnetic media such as memory sticks and tape backups), “compressed” (data that a computer program has compacted to save disk space, and that cannot be read unless un-compressed) or “fragmented” (remnants of a file that has not yet been entirely erased from a hard drive).
Know your client’s obligation
Specifically, know your client’s obligation to preserve electronic information.
Rule 37(f) provides a “safe harbor” from sanctions for litigants accused of spoliating electronic evidence if the information is “lost as a result of the routine, good-faith operation of an electronic information system.” However, because every party has a duty to preserve relevant electronically stored information, and because that duty can arise well before a lawsuit is filed, this “safe harbor” may not be very deep.
Arguably the loss of relevant e-mails because of an auto-delete program or routine mass deletion policy is not the result of a “routine, good-faith” operation if the client failed to suspend automatic deletion once on notice of potential litigation. The individual storage habits of individuals also do not likely fall within the phrase “routine, good-faith operation of an electronic information system.” At the outset of litigation — and even before litigation — the lawyer should identify the “key players” for individual storage records holds. And, of course, be mindful of what you tell your client with respect to preserving e-information; Rule 37(a)(4)(A) permits the court to assess costs for a successful sanctions motion against “the party or attorney advising such conduct.”
Know your limitations
In other words, retain an information systems expert to assist you with your client’s e-discovery obligations. There are myriad reasons to do this. To begin with, consider the changes to Rule 34(a), in which a discovering party may request to “test, or sample any designated documents or electronically stored information . . . from which information can be obtained, translated, if necessary, by respondent into reasonably usable form.” This “sampling” technique can be an effective means to estimate and control discovery costs and to determine the likelihood that relevant information is contained within certain electronic storage devices. But it is only as effective as the person conducting the sampling and testing, who usually should not be the lawyer. Experts can also assist counsel with understanding the client’s systems and advise client and counsel how best to preserve or pursue electronic information (see above).
Keep lines of communication open
Delving into multiple information systems, identifying what is “inaccessible” data, and corralling the personal storage media of numerous “key players” may be prolonged, frustrating and at times overwhelming. For these reasons it is imperative that the lawyer communicate regularly with the client, opposing counsel, and the court regarding the status and progress of e-discovery. By doing so, the attorney can more effectively control the e-discovery process, identify potential problem areas, and minimize the likelihood of discovery disputes or adverse rulings.
As you get your mind around the new rules, don’t let the ‘e’ in e-discovery intimidate you. The essence of discovery hasn’t changed, no matter how fast the technology has. Winning in the courtroom comes down to building persuasive cases and vigorously communicating them to jurors and judges. Whether it concerns e-mails, instant messages, or metadata, discovery is still about gathering information pertinent to that all-important challenge.