E-discovery practice, theory, and precedent: finding the right pond, lure, and lines without going on a fishing expedition.

Author:Alexander, Rachel K.
 
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E-discovery, although not necessarily a "new" concept, is an up-and-coming area of litigation procedure. Despite its prevalence in both civil and criminal matters, however, many attorneys are hesitant to use e-discovery as a tool in their discovery and trial-preparation practices. This article is intended to provide practitioners with a knowledge base about e-discovery matters that will help them understand the proper practices, the underlying theories, and the existing precedent on e-discovery matters.

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Although seeking electronic or computerized information through discovery in litigation is not exactly a new concept, courts and litigators alike are treating the "proper handling of electronic discovery" as "a new and developing area of law practice." (1) In defining what constitutes "proper handling" of electronic discovery, or "e-discovery" as it is sometimes known, courts have repeatedly determined that parties are not entitled to go on "fishing expeditions" in their search for electronically stored information. (2) Rather, the e-discovery amendments to the Federal Rules of Civil Procedure allow the courts, as one court analogized, "to determine the pond, the type of lure, and how long the parties can leave their lines in the water." (3) This article's purpose is to help attorneys gain more confidence in handling e-discovery by finding the right pond, the right lure, the right casting technique, and all the right tackle without wandering into dark waters.

As noted above, e-discovery is not a new concept, although there has certainly been a revitalization of e-discovery theory and precedent in the past few years. Perhaps the most significant reason for the revitalized focus on e-discovery involves the 2006 amendments to the Federal Rules of Civil Procedure that explicitly incorporated "electronically stored information" into the discovery standards in federal civil cases. (4) Another contributing factor is, of course, the reality that electronic communication and processing has taken a dominant role in business and personal relationships worldwide.

Just looking at internet and email use, the statistics are staggering. Worldwide email traffic consisted of 247 billion messages per day in 2009, and that figure is projected to double to 507 billion messages daily by 2013. (5) According to one survey, "business [email] users spend an average of 19 [percent] of the[] work day [] sending and receiving email," which amounted to an estimated "(108) business email messages per day in 2009." (6) The volume of this traffic does not even include "non-communication" data such as word processing, computerized accounting, and similar business and personal functions. Commentators have recognized that at least 90 percent of business information is stored electronically today. (7)

Increased opportunities to create and store massive amounts of electronic information have driven the price of storage down immensely. (8) For instance, in 1990, it cost an average of $20,000 to store a typical gigabyte (9) of electronic information, but the cost to store the same amount of information today is less than a dollar. (10) However, with more information being stored, the volume of information to be preserved, collected, produced, and reviewed during litigation has grown. (11) This has created a converse increase in e-discovery costs. With junior associates at many law firms billing at over $200 per hour, the cost to review that same single gigabyte of data can exceed $30,000 in reviewing fees. (12) The Sedona Conference (13) explained, "[T]he huge cost differential between the $1 to store a gigabyte of data and the $30,000 to review it [] act[s] as a driver in changing the traditional attitudes and approaches of lawyers, clients, courts and litigation support providers about how to search for relevant evidence during discovery and investigations." (14)

Perhaps the volume of electronic information available and the costs associated with reviewing and producing it are sufficient to spur litigators into becoming more e-discovery savvy. If not, perhaps the sanctions available for non-disclosure and spoliation of electronic evidence will motivate litigators to move past their hesitancy to practice e-discovery regularly. The Sedona Conference, in looking at achieving "quality" in the e-discovery process, discussed four reasons that litigators should assess the quality of their e-discovery process, "[s]anctions aside," including that (1) "[f]ailure to employ a quality e-discovery process can result in failure to uncover or disclose relevant evidence which can affect the outcome of litigation"; (2) "[a]n inadequate e-discovery process may allow privileged or confidential information to be inadvertently produced"; (3) "[p]rocedures that measure the quality of an e-discovery process allow timely course corrections and provide greater assurance of accuracy, especially of innovative processes"; and, (4) "[a] poorly planned effort can also cost more money in the long run if the deficiencies ultimately require that e-discovery must be redone." (15) But even if none of that motivates them to take a more serious look at e-discovery, perhaps litigators should consider that courts no longer recognize e-discovery inexperience (either on the litigator's or client's part) as an excuse for failure to produce or comply with discovery obligations (16) and that courts, generally, seem to find e-discovery disputes even more insufferable than traditional discovery disputes. (17)

This article discusses the formal rules and informal guidelines on e-discovery and examines recent judicial decisions that should continue to drive change in attorneys' and judges' attitudes and approaches regarding e-discovery. Part I of this article discusses e-discovery on a more general level, including the practical differences between e-discovery and traditional paper discovery, the history of courts' and commentators' perspectives on e-discovery, and courts' attitudes towards unprepared attorneys who litigate cases in which e-discovery is relevant. (18) Part II examines generally the duty to preserve information, including that in electronic format, and implementation of what has become commonly known as a "litigation hold" on destruction of information. (19) Part III discusses collection and production of electronic information on the part of the party responding to e-discovery requests, the "producing party." (20) Part IV turns the tables and looks at e-discovery from the perspective of the party seeking e-discovery (the "requesting party") from another party to the litigation or a third party. (21) Part V examines how attorneys and judges handle situations in which the producing party cannot or will not produce information, either because it has been destroyed or "spoliated" or because some legally recognized basis supports non-production. (22) This includes a discussion of those legally cognizable exceptions to producing e-discovery as well as the penalties associated with spoliation. (23) Finally, Part VI of the article examines a proactive approach to e-discovery by discussing appropriate advice to clients outside a litigation hold. (24)

  1. FINDING THE POND: THE FOUNDATIONS OF E-DISCOVERY

    1. SUMMARY OF E-DISCOVERY RULES: 2006 FEDERAL AMENDMENTS AND STATE COUNTERPARTS

      In 2006, several Rules within the Federal Rules of Civil Procedure were amended to incorporate "electronically stored information" or "ESI." (25) Although many lawyers were not yet practicing e-discovery or were hesitant about e-discovery prior to these amendments, (26) the concept of e-discovery and its usefulness in many types of litigation should not have been news to litigators. As Wright, Miller, and Marcus explained in Federal Practice and Procedure, the foundation for electronic discovery was laid decades prior to the Federal Rules amendments. (27) Furthermore, the Sedona Conference first published its "Principles" on "Best Practices Recommendations & Principles for Addressing Electronic Document Production" in January 2004, (28) and the American Bar Association added electronic discovery to its Civil Discovery Standards in August 2004. (29)

      In terms of the particular amendments made in 2006, Rule 34, which governs the production of "Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes," was amended to add "electronically stored information" to "documents" and "things." (30) Similarly, the amended Rules mandate that litigators think and confer about e-discovery much earlier during the litigation than perhaps has been the case with traditional discovery in the past. (31) For instance, Rule 26(f), which governs the parties' preliminary discovery planning conference, requires that litigators confer to discuss preservation of discoverable information and develop a proposed discovery plan that includes any issues relating to the disclosure or discovery of electronically stored information. (32) This planning conference and subsequent report goes so far as to include even the "form or forms in which [electronically stored information] should be produced[.]" (33) Following the parties' Rule 26(f) planning conference, the court will enter a Rule 16(b) scheduling order that outlines the case's discovery and general progression, including provisions "for disclosure or discovery of electronically stored information[.]" (34) Under the Rules, this scheduling order, which is sometimes preceded by a Rule 16(b) scheduling conference between the litigators and district court or magistrate judge, must be issued "as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared." (35) And, the parties' Rule 26(f) planning conference must occur at least 21 days before the Rule 16(b) scheduling conference with the court or before...

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