ATTORNEYS, E-DISCOVERY, AND THE CASE FOR 37(G).

• Author: Mancusi, Marilyn G.
• Position: Federal Rules of Civil Procedure

INTRODUCTION

In 2018, an average breach-of-contract case turned into a "quagmire of adversarialism"--all because of the incompetence of one attorney. (1) When the opposing party submitted discovery requests, the attorney was obligated to communicate with IT personnel about what reasonable steps should be taken to preserve potentially relevant information. (2) Yet "[t]here was no timely notice given to the IT department." (3) When the attorney finally advised the client to preserve relevant documents, the advice was "halfhearted" and "wholly inadequate" because he gave "little or no guidance or direction" to the client. (4) According to the court, "[i]t is hard to imagine a circumstance in which [these] steps to preserve ESI would have been considered reasonable." (5) This seems like an obvious case for the imposition of sanctions or discipline, but the attorney got away with it. The court imposed monetary sanctions on the client but failed to discipline the attorney in any way. (6) Unfortunately, this is a circumstance that happens far too often, because courts do not have a reliable, uniform system authorizing them to impose sanctions on attorneys who violate their e-discovery obligations.

There are currently various sources of authority that federal courts can invoke to sanction attorneys who bungle their e-discovery obligations, but each is insufficient. All fifty states have their own rules authorizing courts within the state to refer misbehaving attorneys to the local disciplinan' body, but each state's rule is different, leading to much inconsistency and lack of uniformity among the federal courts. The Federal Rules of Civil Procedure ("FRCP") address e-discovery abuse but do not authorize courts to impose sanctions on attorneys for their role in e-discovery abuse. This is a problem because attorneys have ethical and professional obligations to preserve evidence and advise clients on what information needs to be preserved and how. Many failures to properly preserve ESI can be traced back to the lawyer. This obligation is especially important today, where much evidence and information is found through various electronic forms. Something must be done to provide predictability, uniformity, and efficiency for courts when imposing sanctions for e-discovery violations. Because ESI is so important to discovery, and because attorneys play such a major role in the discovery process, the FRCP should add a Rule giving courts authority to impose sanctions against attorneys who act improperly in e-discovery.

Part I of this Note will discuss the history of discovery and the rise of e-discovery as technology gathered steam. Part II will explain the benefits and costs of technology and e-discovery, and the various ethical obligations and common law expectations that attorneys currently have when it comes to e-discovery. Part III will review several sources of authority that federal courts have used in the past to impose sanctions on attorneys for their role in e-discovery abuse. Part IV will propose a new Rule to be added to the FRCP, which would give federal courts a uniform, reliable system of imposing e-discovery sanctions on attorneys. Part IV will continue with a discussion of the shortcomings of other suggested solutions and potential concerns with a new FRCP Rule.

1. THE HISTORY OF DISCOVERY AND RISE OF E-DISCOVERY

   Discovery originated in equity and was historically only available to litigants at common law after they obtained a writ of discovery from the Court of Chancery. (7) Few litigants took advantage of this practice, however, and those who did were only allowed limited discovery tools. (8) Discovery was likely so rare because litigation was commonly seen as a process that was less "a rational quest for truth, but rather a method by which society could determine which side God took to be truthful or just." (9) Courts rejected the idea that parties should be rifling through each other's files to search for evidence related to the lawsuit. (10) There was no defined process to search for facts and organize evidence, (11) and only a handful of federal statutes entitled litigants to any discovery rights. (12) Otherwise, parties would appear in court, state the facts as they believed them to be, and hope the judge would decide that their story was more "truthful [and] just" than the opposing party. (13) By the mid-1800s, however, discovery became a much more popular practice in suits at common law due to the fusion of equity and law in several state courts. (14) "The idea of hiding relevant facts and documents from the other side and from the judge and/or jury ma [de] little sense, and there [were] numerous examples in which broad discovery [was] crucial to arriving at a just result." (15)

   Then, in 1935, a committee was appointed to draft a uniform set of discovery rules "through which parties could 'obtain the fullest possible knowledge of the issues and facts before trial."' (16) That uniform set of discovery rules became what is now known as the Federal Rules of Civil Procedure ("FRCP"). Finalized in 1938, the FRCP officially merged law and equity in the federal courts. (17) The FRCP included a Rule on discovery, designed "to narrow the issues for trial, to lead to the discovery of evidence, and to foster an exchange of information which may lead to an early settlement." (18)

   At that time and for the next several decades, most business records were in paper format, so when litigation arose, attorneys and their clients would rummage "through the [ir] paper documents to find relevant [information]." (19) Then, in the 1990s, technology changed the way litigants approached discovery. "[T]he advent of email and desktop computers resulted in an explosion of electronic documents," and the increased volume of information revolutionized discovery. (20) The FRCP responded with amendments in 2006 (21) and 2015 (22) to address the many issues and questions that came with new technology and electronic evidence. (23) In particular, Rule 26 was amended to require discovery of electronically stored information (ESI) (24) because "discovery of [ESI] stands on equal footing with discovery of paper documents." (25)

   Today, that statement still rings true. If anything, discovery of ESI ("e-discovery") is more important than discovery of paper documents. E-discovery "can be a game changer in any type of litigation" (26) and "has already proven to be an extremely effective tool for uncovering critical evidence that would otherwise be concealed, thus playing a vital role in the search for truth." (27) This "critical" evidence can be found in a variety of forms: emails, text messages, Google searches, social media posts and messages, and PDFs, to name a few. (28) The amount of potentially discoverable ESI is only growing. The number of people using the internet worldwide has increased from 2.6 billion in 2013 to 4.66 billion in early 2021. (29) In 2021, about 65% of the world's population--5.17 billion people--had access to the internet. (30) In 2010, about 294 billion emails were sent per day. (31) It is estimated that number will increase to 361 billion emails sent per day in 2024. (32) Every second of every day, the average person creates over 1.7 megabytes of data. (33) Each of these megabytes may be discoverable information in future litigation, showing just how vast ESI has become. Electronic data has now become "commonplace in our professional and everyday lives," (34) leaving a "digital trail" that grows "immeasurably" every day. (35)

   Social media, too, is a growing source of ESI. Today, about one-third of the world's population uses some form of social media. (36) Over 2.5 billion people are active Facebook users. (37) Every minute, at least 65,000 photos are shared on Instagram; 2 million snaps are sent through Snapchat; 575,000 tweets are posted on Twitter; and 167 million TikTok videos are watched. (38) Social media use "has become the rule, rather than the exception." (39) It is "not a fad or frivolity, but a paradigm shift sweeping both the legal profession and society at large." (40) Social media produces "a treasure trove of discoverable information" (41) that is "unquestionably... [ESI] in the same sense as e-mail and electronic documents." (42)

2. THE DIFFICULTIES OF ESI AND ATTORNEY OBLIGATIONS IN E-DISCOVERY

   1. The Benefits of Technology Come with Great Costs

      Though e-discovery has taken a preeminent place in the discovery process, it is not without issues. Businesses benefit greatly from technology, because electronic storage is cheaper and more efficient than paper storage, and electronic data is overall easier to organize, access, and store. (43) But these benefits come with great costs. First, huge amounts of data are stored in various places and formats. (44)

      Electronic data is saved on desktop computers, company laptops, digital cameras, email accounts, and USB drives. (45) The data might be saved as a Word document, an Excel spreadsheet, a PowerPoint presentation, or a PDF file. (46) Discoverable data such as text messages, voicemail messages, and calendar entries are saved on mobile devices. (47) Additional sources of evidence include posts, comments, and messages on Twitter, Facebook, Instagram, YouTube, Pinterest, or even blogs or other online articles. (48) Google Maps and GPS's track location, and cell phone apps and games record various personal information. (49) The sheer volume of electronic data and the variety of places in which it can be found make it difficult for parties in litigation to know what electronic evidence they have. (50)

      For businesses, e-discovery also constitutes a very costly and time-consuming process. Many businesses have electronic document retention policies, and when litigation is anticipated or begins, they are required to review those retention policies and either alter or completely halt those policies in order to ensure that all relevant data to litigation...