Chapter 29 - § 29.6 • ELECTRONIC DISCOVERY

• Jurisdiction: Colorado

§ 29.6 • ELECTRONIC DISCOVERY

The use of electronic communications leaves a distinct digital trail. Consequently, electronically stored information (or ESI) evidence is a particularly fruitful source of evidence because, unlike documents in hard-copy form, electronic evidence often provides information that is not readily apparent to the user. In essence, a hard-copy file tells only part of the story — the rest of that story is contained in electronically stored formats, such as metadata. This unique feature of electronic evidence, combined with its proliferation, is having a dramatic impact on the litigation process.

Electronic documents are also more easily replicated than paper documents. Although paper documents can be copied, electronic data can be replicated on a massive scale without causing the degradation of that data. For instance, e-mail users often send the same message to several recipients who, in turn, may forward that message along to others. While these transmissions are taking place, the underlying software automatically creates multiple copies of the sent and received e-mails. Similarly, other common software applications are often designed to periodically and automatically make copies of data to protect against deletion, or for other purposes.

Electronic documents are much more difficult to dispose of than paper documents. One of the most common fallacies in relation to electronic evidence is the notion that once an e-mail or document is deleted, it can never be recovered. In fact, deleted documents may often be recovered in whole or in fragments, long after their deletion. Generally speaking, the more recent the deletion, the more likely a document will be successfully recovered. Important to note, however, is the fact that even files that have been deleted and overwritten may be found in other places on a computer's hard drive, referred to as "free space" or "slack space," and those files can be the source of relevant information. See, e.g., State v. Townsend, 57 P.3d 255, 264 (Wash. 2002) (noting that "[a]lthough some e-mail services may offer the possibility of 'shredding' an e-mail message, arguably the equivalent of actually deleting it, the e-mail file may still be retrievable using certain software. 'A deleted file is really not a deleted file, it is merely organized differently.'") (citations omitted); Adobe Sys., Inc. v. South Sun Prods., Inc., 187 F.R.D. 636, 642 (S.D. Cal. 1999) ("Manual or automated deletion of that software may remove superficial indicia. . . . However, telltale traces of a previous installation remain, such as abandoned subdirectories, libraries, information in system files and registry keys.").

§ 29.6.1—Electronically Stored Information Comes In Many Forms

Word processing documents and e-mail messages contain the information normally associated with hard-copy documents, which is the user-created content. Important to note is the fact that this user-created electronic content is generally transferred to backup media of some kind on a regular basis.

However, important data may also lie below the surface of e-mails and other electronic records. Metadata is information that characterizes data, answering the questions who, what, when, where, why, and how about the data being documented. It consists of the thousands of pieces of information that are automatically created and maintained by software programs, and it reveals the following types of information, distinct from the user-created content of the file:

• Creation, edit, comment, and deletion dates and times; and
• Authorship or the username associated with those tasks.

Metadata provides a blueprint of a backdated document and may reveal a party's improper attempts to delete relevant information after receiving notification of a lawsuit.

Word processing documents contain their own unique metadata. In addition to tracking authorship, creation, and modification dates and times, metadata associated with word processing documents enables the "undo" function, which allows for the recall of deleted information. Word processing document metadata also contains hidden codes that determine when to indent a paragraph, change a font, and set line spacing.

E-mail messages also have their own metadata elements that include, among 800 or more properties, information such as:

• "To," "from," "cc," and "bcc" information;
• Dates and times e-mails were sent, received, replied to, and forwarded; and
• Sender address book information.

Spreadsheets such as those created by Microsoft Excel may contain hidden calculations or hidden columns not visible in hard-copy versions. Finally, Internet documents such as websites or HTML documents contain hidden data or "meta-tags" that allow for the transmission of information between an internet user's computer and the server on which the Internet document is contained. These "metatags" allow search engines to locate websites responsive to specified search criteria.

§ 29.6.2—Rules Governing Electronic Discovery

Under both the federal and Colorado rules, parties are encouraged to draft an e-discovery plan very early in a dispute that is tailored to the specific issues in the case. Under the Colorado Rules of Civil Procedure, "[i]f the parties anticipate needing to discover a significant amount of electronically stored information, the parties shall discuss and include in the proposed [Case Management Order] a brief statement concerning their agreements relating to search terms to be used, if any, and the production, continued preservation, and restoration of electronically stored information, including the form in which it is to be produced and an estimate of the attendant costs." C.R.C.P. 16(b)(15). The discovery of electronic items is allowable under C.R.C.P. 34(a)(1), which allows a party to request production of "designated documents," defined to include information from "data compilations," and Rule 45(a)(1)(A)(iii), which authorizes a subpoena for designated "books, papers, and documents, . . . or tangible things."

F.R.C.P. 16(b)(3)(B)(iii) provides that a Scheduling Order may "provide for disclosure, discovery, or preservation of electronically stored information." Scheduling Orders result from a Rule 26(f) conference and the drafting of a discovery plan. F.R.C.P. 26(f)(3)(C) now requires parties to include in their discovery plan "any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced." The U.S. District Court for the District of Colorado encourages parties to use a Rule 26(f) meet-and-confer ESI checklist. The most recent iteration of this checklist is attached to this chapter as Exhibit 29E. The checklist focuses on preservation of ESI, the location and type of data and systems at issue, the proportionality and costs of ESI discovery, the search and filtering of ESI, phasing of ESI discovery, production, and privilege. In addition, the U.S. District Court for the District of Colorado has also promulgated e-discovery guidelines. The e-discovery guidelines are attached to this chapter as Exhibit 29F. While not required in Colorado state courts, the guidance provided by these federal court forms may be useful to parties in determining their ESI discovery needs.

The federal rules are a bit more specific about the discoverability of ESI. Under F.R.C.P. 34(a)(1)(A), a party may request "any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form." In addition, F.R.C.P. 34(b)(2)(E)(ii) states that "[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms." Parties may also subpoena ESI. Pursuant to F.R.C.P. 45(a)(1)(A)(iii), a party may "command each person to whom it is directed to do the following at a specified time and place: attend and testify; [or] produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control. . . ."

F.R.C.P. 37(e) provides for strict penalties against a party that fails to take reasonable steps to preserve electronically stored information in the anticipation or conduct of litigation. It is important to know that the act of converting original, non-ESI material into ESI does not convert the nature of the material itself, and may constitute sanctionable conduct if the original is not also preserved. See, e.g., Mitcham v. Americold Logistics, LLC, No. 17-cv-00808-WJM-NYW, 2017 U.S. Dist. LEXIS 152999 (D. Colo. Sep. 20, 2017). A finding of prejudice as a result of the loss of information may result in a penalty no greater than necessary to cure the prejudice. If a court finds that a party acted with the intent to deprive another party of the information, a court may (1) presume the missing information was unfavorable to the party; (2) instruct the jury that it may or must presume the missing information was unfavorable to the party; or (3) dismiss the action or enter a default judgment. F.R.C.P. 37(e)(2)(A) through (C).

The Routine Alteration and Deletion of Electronic Information

The Federal Rules of Civil Procedure contemplate the routine alteration and deletion of electronic information. F.R.C.P. 37(f) provides a safe harbor against the sanctions provided for by this rule if data is lost as a result of such routine operations and those operations were performed in good faith. This protection, however, is very limited. For instance, the 2006 advisory committee notes state that good faith could include "a party's intervention to modify or suspend certain features...