Navigating e-discovery in the Massachusetts state trial courts.

• Author: Klickstein, Barry C.

1. INTRODUCTION II. DISCUSSION A. The 2006 Amendments to the Federal Rules of Civil Procedure B. The Guidelines for State Trial Courts Regarding Discovery of Electronically--Stored Information 1. The 10,000 Foot View 2. The Detailed Guidelines C. Differences Between The Guidelines and The Federal Rules D. Spoliation III. CONCLUSION I. INTRODUCTION

   When the Massachusetts Rules of Civil Procedure were adopted in 1974, patterned on the Federal Rules of Civil Procedure, (1) Rule 34 discovery simply involved the exchange of paper documentation between the parties to the litigation. (2) By 2008, however, it was estimated that 210 billion e-mail messages are transmitted daily. (3) With the enormity of that amount of "non-paper" information stored on hard drives, servers, and backup tapes came the problem of producing it during civil litigation. (4) By its nature, this electronic or digital information, now known universally in litigation as electronically-stored information ("ESI"), (5) differs significantly from conventional paper information. (6) Differences include: (1) the sheer volume of information generated; (2) the dynamic, volatile and/or mutable nature of that information from simply opening a file or turning on a computer; (3) the permanent nature of the information; (4) what its metadata (7) can tell us from a forensic standpoint; and (5) the cost of retrieval. (8) Recognizing these differences, the Civil Rules Advisory Committee for the Federal Rules of Civil Procedure attempted to address the issues raised by the discovery of ESI, an effort that resulted in a package of amendments to the Federal Rules of Civil Procedure that went into effect on December 1, 2006. (9)

   While there has been much attention paid to publicizing and evaluating the 2006 package of amendments to the Federal Rules of Civil Procedure in the area of electronic discovery, there has been little attention to the appropriate approach in the state trial courts of the Commonwealth of Massachusetts. (10) Rule 34 of the Massachusetts Rules of Civil Procedure does include the obligation to produce documents and things in a non-paper format, but it does not lay out the precise nature of the obligations or the appropriate method for doing so. (11) Furthermore, there has been no amendment to the Massachusetts Rules of Civil Procedure, and the Standing Advisory Committee on the Rules of Civil and Appellate Procedure is simply monitoring the federal approach under the 2006 amendments. (12) Without the adoption of a formal set of rules by the state courts of the Commonwealth of Massachusetts, the approach to "ediscovery" can seem like the blind leading the blind, a virtual guessing game. (13) What has been overshadowed by the adoption of and the publicity surrounding the new Federal e-discovery rules is the attempt by the Conference of Chief Justices, through an e-discovery task force chaired by Supreme Judicial Court Chief Justice Margaret H. Marshall, to provide useful guidance in this area for state court judges. (14) Although this guidance falls short of actual amendments to the Massachusetts Rules of Civil Procedure, it does shed some light on an area that to date has caused panic for attorneys and clients alike. This article highlights the Guidelines as one of a number of sources that may provide guidance in the area of state court e-discovery issues, and it offers advice in navigating a state court case involving a significant amount of ESI so as to avoid sanctions.

2. DISCUSSION

   1. The 2006 Amendments to the Federal Rules of Civil Procedure

      Faced with what was inconsistent developing case law in the area of e-discovery, the Civil Rules Advisory Committee for the Federal Rules of Civil Procedure amended the Federal Rules governing discovery in an effort to clarify the process of retaining, retrieving, and re-producing ESI. (15) While there is some debate on whether these amendments actually provide the needed clarification, the existence of formal rules does provide some predictability that had been missing from the relevant case law existing at the time. (16) Prior to the effective date of the e-discovery amendments to the Federal Rules, the seminal authority in this area was a series of decisions in the Zubulake v. UBS Warburg matter pending before the United States District Court for the Southern District of New York. (17) In that litigation, a former equities trader for the defendant UBS Warburg ("UBS"), Laura Zubulake ("Ms. Zubulake"), filed an action against UBS for gender discrimination and illegal retaliation. (18) During the discovery phase of the litigation, UBS responded to discovery requests propounded by Ms. Zubulake by producing just over 350 pages of documents, including 100 pages of e-mails from "key players" within its organization, claiming that any search and production of additional emails that were stored on back-up tapes was cost prohibitive and thereby unwarranted. (19) Ultimately, the court disagreed with UBS and ordered production of five of UBS' ninety-four backup tapes. (20) When it came to actual production of the information stored on these tapes, however, UBS "realized" that several of these backup tapes had been recycled rather than retained. (21) Despite UBS's implementation of an early "litigation hold," which included oral instructions to all employees to retain any relevant information regarding Ms. Zubulake and the pending litigation, (22) UBS failed to specifically order that the backup tapes be retained rather than recycled. (23) The court found UBS liable for the destruction of the emails, notwithstanding UBS in-house counsel's instruction to employees not to destroy them. (24) As a sanction, the court ordered UBS to pay Ms. Zubulake's attorneys' fees and costs associated with the taking and re-taking of depositions occasioned by UBS' misconduct, and the court gave the jury an adverse inference instruction with respect to the emails lost. (25) This instruction led to a $29.3 million jury verdict in favor of Ms. Zubulake. (26) Not only did Zubulake V set the tone for sanctions, it also set the duty to preserve at the point in time when a party anticipates litigation. (27) The case further demonstrated that a litigation hold letter was not the panacea to a claim for sanctions against counsel for a client's destruction of evidence. (28) Zubulake V places significant emphasis on counsel's active role in preserving the evidence, even if that means taking physical possession of backup tapes to ensure that they are not inadvertently recycled. (29)

      When the new package of amendments to the Federal Rules of Civil Procedure aimed at discovery of ESI went into effect on December 1, 2006, there was a sigh of relief that echoed through the federal bar. Previously, many practitioners had been holding their breath every time they faced the arduous task of appropriately responding to discovery requests aimed at capturing a large volume of a client's ESI. While by no means relief to a client facing the expense of e-discovery or relief to an attorney trying to comprehend the detail, sources, and custodians of his/her client's ESI, at the very least the amendments were intended to provide some much-needed predictability with respect to the proper approach to and treatment of the issues surrounding e-discovery. (30) In particular, the amendments codify the duties and obligations of the practitioner in navigating what were previously murky waters. (31) The amendments include the factors to be considered with respect to the allocation of cost of production, the form of production, the advantages of avoiding disputes by coming to early agreement on the issues, the scope of the duty to preserve, and the standards for sanctions. (32) The amendments were intended to codify the burgeoning federal jurisprudence that is largely encapsulated in the Zubulake decisions. (33)

      The waters may have cleared in the federal court, but the absence of any amendment to the counterpart Massachusetts Rules of Civil Procedure has left practitioners looking for guidance in their efforts to properly deal with these issues efficiently, effectively, and appropriately, in order to provide a modicum of predictability for their clients. The need for formal, written guidance is particularly appropriate because discovery disputes are determined in many cases on the fly with no reported, or even many times written, trial court opinions, let alone any appellate court decisions upon which to rely. (34) The Supreme Judicial Court has asked its Advisory Committee on the Rules of Civil Procedure to monitor the experience of the federal courts, but there is no indication as yet whether and if so, when, we may see amendments to the Massachusetts Rules of Civil Procedure setting forth the standards for electronic discovery.

   2. The Guidelines for State Trial Courts Regarding Discovery of Electronically--Stored Information

      Recognizing the need for some guidance and uniformity in the area of electronic discovery in the state courts, the Conference of Chief Justices ("CCJ"), adopted its own set of Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information in August of 2006 (hereinafter "the Guidelines").35 The Conference officially approved the Guidelines in Resolution 6 at the 58th Annual Meeting on August 2, 2006, after a two-year process through which the highest judicial officers of each state presented their opinions and insight. (36) Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall was the chair of the task force that drafted the Guidelines, and the Guidelines have been linked to the Massachusetts Trial Court Law Libraries website. (37) Accordingly, while non-binding, the pedigree of the Guidelines suggests that their use carries more weight than simply persuasive authority in the area of e-discovery in the state courts of the Commonwealth of Massachusetts. (38) 1. The 10,000 Foot View

      The...