2006 Spring, 22. Electronic Discovery: Litigation Crashes into the Digital Age.

• Author: Bar Journal Author - Attorney Cameron G. Shilling

New Hampshire Bar Journal

2006.

2006 Spring, 22.

Electronic Discovery: Litigation Crashes into the Digital Age

New Hampshire Bar Journal Volume 47, No. 1, Pg. 22Spring 2006Electronic Discovery: Litigation Crashes into the Digital AgeBar Journal Author - Attorney Cameron G. ShillingComputers are present in every aspect of our lives. Electronic data and digital storage devices are replacing paper and filing cabinets. Email is far more prevalent and often preferred to face-to-face meetings and telephone calls, and the Internet has reinvented the way we communicate, transact business and obtain information.

Society's addiction to continuous technological innovation has caused an explosion in the amount of electronic data created and a proliferation of electronic devices upon which data is stored.2 In the words of U.S. District Court Judge Shira Scheindlin, who authored a series of seminal decisions in this area, as "individuals and corporations increasingly do business electronically - using computers to create and store documents, make deals, and exchange e-mails - the universe of discoverable materials has expanded exponentially."3

While lawyers as a group have been slow to adopt technology for ourselves, we are not ignorant about the value of it in lawsuits. Now, the smoking gun is much more likely to be found in electronic data than on a piece of paper.4 It is not surprising, therefore, that litigation is crashing into the digital age in the form of "e-discovery."

Electronic data is fair game for discovery. Over three decades ago, the Federal Rules of Civil Procedure were amended to clarify that "documents" discoverable under Rule 34 include electronic data.5 However, that change did not suffice to keep the law abreast of the profound changes in information technology that have occurred since then.

Discovery of electronic data raises markedly different issues from the discovery of documents, because there are fundamental differences between data and paper. For example, while it may be black letter law that data is discoverable, it is not at all clear how much discovery a litigant can obtain when the amount of potentially discoverable data is enormous, particularly data that is time consuming and costly to restore. As Judge Scheindlin aptly observed, the "more information there is to discover, the more expensive it is to discover all the relevant information until, in the end, discovery is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter."6

E-discovery also raises major issues involving the duty to preserve evidence for litigation and the sanctions imposed for spoliation of it. Because the amount of potentially discoverable data is often overwhelming and data is susceptible to unintentional and automatic destruction, spoliation is a frequent e-discovery problem, which can result in monetary sanctions commonly in the tens of thousands of dollars and case crippling negative evidentiary inferences.

E-discovery law has had to evolve rapidly just to catch up to and keep pace with the ever increasing speed of technological innovation. Pioneers in this area initially devised principles to guide the growth of the law, called The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production ("Sedona").7 A few decisions from wise federal court judges also have been very influential.8 Most importantly, the U.S. Supreme Court recently approved significant amendments to the Federal Rules of Civil Procedure to address e-discovery, which take effect December 1, 2006. E-discovery also is a topic of some state court rule amendments, including New Hampshire.

Coming up to speed on e-discovery is a daunting task for many lawyers. Those who succeed in doing so will realize that the framework for e-discovery makes sense, and they will have the ability to effectively litigate in the digital age. Those who do not will find themselves at significant disadvantages. This will happen because, while e-discovery not only has a "potential to increase discovery costs and delays, further burdening the litigation process," it has an equal "potential to make discovery more efficient, less time-consuming, and less costly, if it is properly managed and effectively supervised."9

A. There Are Fundamental Differences Between Documents and Electronic Data

To comprehend e-discovery rules and be an effective digital age litigator, it is critical to understand the fundamental differences between electronic data and paper. Old assumptions about paper do not translate well into the realm of electronic data. For example, an old assumption is that a party retaining electronic data "does so because the information is useful to it," and therefore it should bear the burden of retrieving discoverable materials from the data.10 That assumption is invalid for e-discovery because the costs of storing electronic data are in substantial and many types of storage devices are not amenable to litigation discovery.

There are five key differences between electronic data and documents: (1) volume; (2) persistence; (3) dynamics; (4) environment-dependence; and (5) dispersion.

The first and most significant difference is that the amount of information available for discovery has exponentially increased. Through the continuous use of an expanding variety of computer technologies, we constantly create electronic data (particularly email) that accumulates at an accelerating pace. To keep up, we invent devices that store ever larger volumes of data in ever smaller packages. For example, millions of printed pages are now easily carried on a "zip drive" smaller than your thumb.11

There are also entire categories of data that have no paper analog and are created in vast quantities, such as "metadata." Metadata is information about other data, like when and who generated the data, whether and how the data was copied or transmitted, and when and what was changed. Metadata exists at various levels, often being invisible or inaccessible to most users, and there may be many hundreds of pieces of metadata associated with one electronic document. Knowing if metadata needs to be preserved and produced can be one of the biggest challenges in electronic document production.12

The volume of potentially discoverable data is not just a knotty logistical issue. Moreover, large corporations are not the only litigants that generate huge volumes of data. The costs and burdens associated with e-discovery are so significant to most litigants that, if unregulated, e-discovery will become the decisive factor when developing a litigation strategy in many cases, and will preclude litigants from pursuing meritorious claims.13

Another major difference between electronic data and paper is that data is persistent. It is not erased when it is deleted, and it is rarely destroyed unintentionally or without significant effort. Judge Scheindlin described this phenomenon as follows:

The term 'deleted' is sticky in the context of electronic data. 'Deleting' a file does not actually erase that data from the computer's storage devices. Rather, it simply finds the data's entry in the disk directory and changes it to a 'not used' status - thus permitting the computer to write over the 'deleted' data. Until the computer writes over the 'deleted' data, however, it may be recovered by searching the disk itself rather than the disk's directory. Accordingly, many files are recoverable long after they have been deleted - even if neither the computer user nor the computer itself is aware of their existence. Such data is referred to as 'residual data.' * * * Deleted data may also exist because it was backed up before it was deleted. Thus, it may reside on backup tapes or similar media.14

Persistence compounds the rate at which data accumulates, and creates another category of discoverable data existing unknown to the individuals with custody over it. This issue has even led to a proliferation of software that purports to electronically shred or erase deleted data, such as one called "Evidence Eliminator"; although some such programs are ineffective, and the use of them is detectible and raises obvious spoliation and sanctions issues.

The third significant difference between documents and electronic data is that data is dynamic. It is "designed to change over time without human intervention" and is "never fixed in a final form" by its very nature.15 Data can be modified in innumerable ways, both intentionally and inadvertently, and such modification can be difficult to detect without computer forensics or impossible to detect at all. Indeed, merely accessing or moving electronic data or turning a computer on or off will modify data on it.

Another dynamic feature of electronic data is that it is easily, rapidly and perfectly reproducible. As a result, computers create and store copies of electronic data, typically without the awareness of the user, and the copies can be identical, differ only in minor or unimportant ways, or be greatly or meaningfully different.16

The dynamic nature of electronic data has significant ramifications upon a person's duty to preserve evidence in anticipation of potential litigation. Unlike paper, any delay in locating and securing discoverable data could result in critical evidence becoming irretrievably lost. This danger is so significant that the new Federal Rules of Civil Procedure have a "safe...