 | Electronic discovery can
cause heartache for litigants and attorneys, even in the smallest dispute –
particularly in an environment where e-mails, text messages, voice-mails,
and instant messages race deftly and instinctively from employees with the
latest gizmo. As usual, forethought,
proper planning, and knowledge of the rules can eliminate substantial concern.
|
I.
Pre-Incident Preparation: Have Well-Informed, Savvy Users
The best time to start thinking
about e-discovery is now – well before the possibility of litigation arises. Companies should establish a culture that (i)
recognizes the importance of using electronic communications prudently, (ii) protects
electronic documents that may be discoverable in litigation, and (iii) ensures
that e-mail, network, and computer users understand the implications of using
and creating electronic documents. Employees need to understand that deletion of
an e-mail on their computer does not actually delete it from the company’s
servers. Taking precautions before an incident arises will reduce both the cost
of complying with e-discovery rules and the risk of violating them.
II.
Incident and Post-Incident Caution
A.
Cautious Use of Technology
Speculation,
half-hearted assumptions, and simple misinformation often appear in early e-mails
in the midst and aftermath of an incident.
Poorly worded e-mails based on incomplete and imperfect information may cause
harm during litigation. Opponents
savor using them to obscure the issues and to intimidate their adversaries. At best, defending these misleading documents
delays, complicates, and increases the cost of litigation; at worst, these documents
can be insurmountable obstacles that lead to an unjust resolution of the
dispute. An e-mail culture that promotes
the business purpose of all business communications may help to avoid these
difficulties.
B.
Document Protection and Spoliation of Evidence
Once a party
reasonably anticipates litigation, electronic documents (along with other types
of evidence) cannot be destroyed. Even the
routine destruction of relevant e-mails
and e-documents must cease. See, e.g.,
Consolidated Aluminum Corp. v. Alcoa, Inc., No. 03-1055-MC-2, 2006 WL
2583308, at *4 (M.D. La.
July 19, 2006) (citing Zubulake v.
UBS Warburg, LLC, 220 F.R.D. 212 (2003)).
The so-called “litigation hold” must be a proactive process: “passivity often leads to alteration,
deletion, or destruction of information.”
Lee H.
Rosenthal, A Few Thoughts on Electronic Discovery After December 1,
2006, 116 Yale L.J. Pocket Part 167, 177-78 (2006).
Failure to take these proactive steps can lead to sanctions
for spoliation of evidence (“the destruction or significant alteration of
evidence, or the failure to preserve property for another’s use as evidence in
pending or reasonably foreseeable litigation”).
Zubulake, 220 F.R.D. at 216. Sanctions may
even include suppression of evidence or dismissal
of the case. MOSAID Tech. Inc. v.
Samsung Elecs.
Co., 348 F. Supp. 2d 332,
335 (D.N.J. 2004). As soon as litigation
becomes likely, attorneys should begin to work closely with the client’s IT
department to preserve relevant information and to prevent routine overwriting
of backup media.
III.
E-Discovery: The
Heat of Battle
A.
Rule 26(f) Conference
Parties must meet and confer
about issues related to electronic discovery at their initial Rule 26(f)
discovery conference. In particular, the
rules require the parties are to discuss any issues relating to: (i) preservation of discoverable information;
(ii) disclosure or discovery of electronically stored information (including
the form or forms in which it should be produced); and (iii) issues relating to
claims of privilege or protection of trial-preparation material. F.R.C.P. 26(f), (f)(3), (f)(4). Requiring the parties to address the issue of
production of electronically stored material at the 26(f) conference encourages
them to identify potential areas of conflict early on, with the goal of
“avoid[ing] later difficulties or eas[ing] their resolution.” Rule 26, Advisory Cmte. Notes.
B.
Discovery Responses and Production of Documents
Litigants (quite rightly) will be looking for juicy e-mails
and drafts of sanitized memoranda as soon as possible. Federal Rules of Civil Procedure 26(b)(2)(B)
establishes a “two-tier” structure for responding to requests for electronically
stored information. Rosenthal, 116 Yale
L.J. at 177-78. First, a party must
produce all requested electronically stored information that is “relevant,
nonprivileged, [and] reasonably accessible.”
Id. To engage the second tier, the producing
party must demonstrate undue burden or cost in retrieving the information. Id. The burden then shifts to the requesting
party to show that there is “good cause” to order the production. Id. The court may impose conditions (such as
the shifting of production costs) on discovery in such a situation.
1.
Carefully Drafted Requests
Parties should carefully tailor their requests for
electronically stored information narrowly because the Rules prohibit discovery
that inflicts an undue burden on the responding party. F.R.C.P. 26(b)(2)(C). The rule aims to prevent “fishing expeditions”
into parties’ electronic files which may be expensive or interfere with a
party’s ability to conduct their day-to-day operations.
2.
Using and Abusing Metadata
Metadata is “information describing the history, tracking,
or management of an electronic document.”
Rosenthal,
116 Yale L.J. at 185-86. A shrewd
litigator can use this information to raise numerous implications. Under Rule 34(b), the requesting party has
the right to request metadata. The
responding party may then file a written objection, specifying the form it
intends to use. If the parties cannot
resolve the issue on their own, the court must decide how documents will be
produced.
C.
“Owning Up” to
Mistakes
If evidence is inadvertently lost, counsel should be
forthright with the other parties and the court regarding the circumstances of
the loss. Working in good faith to find
a solution to the problem may ultimately reduce the penalty a party faces for
allowing evidence to be destroyed.
IV.
Final Thought
Honesty remains the best policy at all stages throughout the
process. Unquestionable credibility is
invaluable during litigation. That means
(i) ensuring that all electronic documents are scrupulously accurate from their
creation, (ii) protecting relevant documents from destruction as soon as
litigation is anticipated, and (iii) in the event of a mistake (either a
destroyed document or an inaccurate one), owning up to it early and with the
intention of rectifying the problem in good faith.
For more information, please
contact Don K. Haycraft at dkhaycraft@liskow.com, or Stephen M. Pesce
at smpesce@liskow.com
or go to www.liskow.com.
