Discoverability of document management systems: pitfalls and how to avoid them.

• Author: Larimore, Mary Nold

Advance planning and careful monitoring of the creation and use of systems are necessary to preserve work product privilege

Hundreds of thousands of documents comprising millions of pages of text and other information are involved in modern mass tort and other document-intensive litigation. In these complex cases, the collection and management of such staggering quantities of documents is one of the litigator's most significant logistical concerns.

Not so many years ago, cases involving many documents were managed with a stack of three-by-five-inch index cards. On each card there was a summary of a document; in more elaborate systems, there was a cross-reference to other related documents.(1) The creation and management of card indexes was extraordinarily labor intensive, and the finished product frequently lacked reliability. Today, the computer has supplanted hard-copy trial notebooks, tab locators and card indexes.

Major advances in computer technology permit attorneys to employ a wide array of computerized document management systems. The software available today typically embodies some form of a graphic image retrieval system, which, at a minimum, allows counsel to control everything from the scanning to the recall of the documents. Most important, a flexible database enables counsel to create abstracts of the documents for purposes of employing full-text indexing and retrieval of the data. Full-text retrieval of documents also may be an option. That decision usually is based on the nature and quality of the documents, as well as the litigation budget, because full-text retrieval is much more expensive than imaging.

As computer and information technologies have become more versatile and cost efficient, corporations and their defense counsel have embraced computerized litigation management systems as an indispensable tool in managing large volumes of documentary evidence. But along with the virtues come significant issues that require consideration and attention at the onset of any document-intensive case. One of the most important considerations is the potential discoverability of the document management system or database index.

UNDERSTANDING THE BASICS

In order to appreciate the many legal issues that a document management system implicates, one needs a basic understanding of the various types of systems available. Most systems fall into one of two categories: (1) full-text format or (2) index or summary format.(2)

The full-text format involves making an electronic version of the documents with a computer scanner, thereby creating an electronic database that will contain the full text of the documents. Once the documents are scanned into the system, they can be retrieved at any time by searching for any word, phrase or number within the document. This can be a very expensive proposition, as there is considerable labor involved in ensuring the accuracy of the scanned documents.

The index format does not involve scanning the full text. Rather, attorneys or paralegals create summaries of the relevant documents, not unlike the old index card systems, which are divided into several "fields" of information. These fields can be broadly categorized as "objective" and "subjective," depending on the nature of the information contained within the field. Fields composed of factual information related to the documents, such as the document's date, author, recipients and the general subject matter, are deemed objective fields. Subjective fields, on the other hand, consist of defense counsel's categorization, summary and opinion of each document as it relates to the case.

If the index format is utilized, it is still possible to have a graphic image of the document available in the computer to review and annotate. Imaging is much less expensive than full- text retrieval, yet it provides the convenience and portability of an electronic database.

Determining the discoverability of a particular document retrieval system, whether it is index cards or an electronic database, requires the application of the rules of civil procedure and case law to the particular type of system utilized. In addition, the discovery of modern computer-aided document management system must be examined in the context of the rules and case law pertaining to computer data generally. In particular, one must consider the work product doctrine and recent case law addressing discoverability of document management systems, including the issues of waiver and sanctions.

DISCOVERABILITY OF COMPUTER DATA

In 1970, the Supreme Court amended Rule 34 of the Federal Rules of Civil Procedure to authorize the discovery of information stored in computers. That rule now defines the scope of discovery:

(a) Scope. Any party may serve on any

other party a request (1) to produce and

permit the party making the request, or someone

acting on the requester's behalf, to inspect

and copy, any designated documents

(including writings, drawings, graphs, charts,

photographs, phone records, and other data

compilations from which information can be

obtained, translated, if necessary, by the

respondent through detection devices into

reasonably usable form) ... [Emphasis

supplied.]

The Advisory Committee Notes discussing Rule 34 state:

The inclusive description of "documents"

is revised to accord with changing

technology. It makes clear THat Rule 34 applies to

electronic data compilations from which

information can be obtained only with the use

of detection devices, and that when the data

can as a practical matter be made usable by

the discovering party only through

respondent's devices, respondent may be required to

use his devices to translate the data into

usable form. In many instances, this means that

respondent will have to supply a print-out of

computer data. The burden thus placed on

respondent will vary from case to case, and

the courts have ample power under Rule

26(c) to protect respondent against undue

burden or expense, either by restricting

discovery or requiring that the discovering party

pay costs. Similarly, if the discovering party

needs to check the electronic source itself,

the court may protect respondent with

respect to preservation of his records,

confidentiality of non-discoverable matters, and

costs.

In light of this amendment, it is now axiomatic that electronically stored information, if relevant or likely to lead to the discovery of admissible evidence, is discoverable.(3) Since then and as a consequence of the increased use and versatility of computer technology, courts have expanded the scope of discovery beyond the mere production of electronically stored information. For instance, some courts have required responding parties to develop special software programs to extract the requested information and to assist the requesting party in reading and interpreting the computer stored information.(4) Courts also have permitted not only discovery of the computer data but also the scope of a respondent's software capabilities and capacities, if such information is relevant or likely to lead to the discovery of admissible evidence.(5)

Although courts will permit expansive discovery into computer maintained information, there are limits with respect to document management systems to the extent that disclosure of such information impinges on counsel's work product.

DISCOVERABILITY OF DOCUMENT MANAGEMENT SYSTEMS

It is not uncommon in mass tort and other complex cases for plaintiffs to propound a shotgun discovery request seeking from defendants all documents related to the product or matter at issue. In response, defendants eventually direct the plaintiffs to several million pages of documents contained in a large off-site warehouse that, plaintiffs complain, has no windows, no ventilation and no light bulbs stronger than 25 watts.

Beginning in about the mid-1970s, plaintiffs' lawyers, discontented by actually having to read all of the documents they requested, embraced with great fervor the advent of defendants using computer litigation support systems that included, in particular, document indexes. No sooner had defendants begun using these systems than plaintiffs began seeking discovery of not only the data compilations contained in the systems but also the indexing mechanism used to store and manage the data. In response, defendants argued that the information was not discoverable under the work product privilege.

1. Attorney Work Product Doctrine

   At the heart of any determination regarding the discoverability of a document retrieval system is the work product doctrine established by the Supreme Court in Hickman v. Taylor,(6) and partially codified in 1970 in Rule 26(b)(3) of the Federal Rules of Civil Procedure. The doctrine, in its current form in that rule, provides in pertinent part:

   (3) Trial Preparation: Materials.

   Subject to the provisions of subdivision (b)(4) of

   this rule, a party may obtain discovery of

   documents and tangible things otherwise

   discoverable under subdivision (b)(1) of this

   rule and prepared in anticipation of litigation

   or for trial by or for another party or by the

   other party's representative (including the

   other party's attorney, consultant, surety,

   indemnitor, insurer, or agent) only upon a

   showing that the party seeking discovery has

   substantial need of the materials in the

   preparation of the party's case and that the party is

   unable without undue hardship to obtain the

   substantial equivalent of the materials by

   other means. In ordering discovery of such

   materials when the required showing has

   been made, the court shall protect against

   disclosure of the mental impressions,

   conclusions, opinions, or legal theories of an

   attorney or other representative of a party

   concerning the litigation.

   In Hickman, the Supreme Court rejected, as the Court put it, "an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse...