ESI: Tactics and Discovery

• Author: Leonard Bucklin
• Pages: 193-298

45-1 (Rev. 7, 9/11)

45. ESI: Tactics and Discovery

§45.1 Educate Yourself About E-

Discovery Before You Have a

Problem

Lawyers cannot claim ignorance of e-discov-

ery issues anymore. By 2004, e-discovery was

mainstream. By the end of 2006, the Federal

courts, followed closely by several state courts,

had inserted into their civil rules various spe-

cific procedures for e-discovery. You have to

educate yourself about e-discovery. You do not

have a choice about it.

Fundamental change in information

available.

You cannot win a case without information!

The start of this century saw a fundamental

change in available information. Only by

understanding the nature and extent of elec-

tronically stored information (ESI) can you

know what information is available.

Until this century, a lawyer could know

what information was available by looking in a

pile of paper. Now it is physically impossible to

know what is available by looking at a pile of

paper. In addition, in this century, digital cre-

ation and almost unlimited storage has

changed the volume of information to a size

difficult to comprehend.

At least 92% (probably much more) of all

business information and communication is

generated in digital form. Production and sales

data, product engineering designs, quality con-

trol notation on engineering drawings, and

accounting functions of all kinds are almost

exclusively captured and recorded electroni-

cally. Medical records are rapidly being created

and stored electronically. The default method

of communication between employees among

themselves, with their supervisors and subor-

dinates, and with outside vendors and cus-

tomers no longer is the telephone system but

rather is email. The computer is the default

method of preparing formal correspondence

and agreements of all sorts. If you do not look

at the ESI, you are ignoring most of the commu-

nications, memos, letters, and data that are

involved in proving your case!

Many lawyers believe electronic discovery is

relevant only for a few document-intensive

cases. This belief ignores today’s reality, where

both businesses and individuals keep impor-

tant information in computer files or email.

This belief also ignores today’s reality that key

documents are normally only viewed by users

on computer screens.

Suppose you were a client; wouldn’t you be

amazed if you found your lawyers planned to

ignore whole areas of available information

that might hold key evidence in the case? For

example, in a divorce case, assets, income, and

expenses are at issue. Relevant and important

information probably resides in Quicken files,

electronic lists of assets, spreadsheets, out of

town hotel reservations, and downloaded bank

records. Those are in the home computer. The

push of a “delete” button does not destroy

them. Ignoring them is ignoring solid evidence.

As another example, it is difficult to imagine

employment discrimination cases where you

would not want to see email, and to find what

the employee’s personnel records looked like

before the termination. As another example of

information ignored by those not seeking ESI,

consider the average truck crash. All truck

engine makers now provide recording devices

that monitor driver performance. Why ask the

driver if he covered 100 miles in 60 minutes

when there is electronic information that tells

low speed, high speed, average speed, and how

long the truck was stopped in idle during the

relevant 60 minutes?

One company suing another company is

now one of the largest categories of litigation in

the courts. For the purposes of discovering the

core facts in such commercial litigation, you

1The estimates vary, but 60 per day is minimum according to several studies. See, e.g., “The average office worker will send and

receive between 60 and 200 email messages each day.” The Data Administration Newsletter (2002). See also, Dabish and Kraut,

Email Overload at Work: An Analysis of Factors Associated with Email Strain, Human-Computer Interaction Institute, Carnegie

Mellon University, for a well controlled study.

can think of a corporation as being only pat-

terns of communication and the communica-

tions themselves. A corporation is a legal

invention (a fictitious person) for documenting

what real persons are doing or did. The artifi-

cial person acts only through real people or

communications. This artificial person, the cor-

poration, exists only in documents and data.

Your commercial litigation client needs you to

find documents and data of the opposing com-

pany. And those are in the ESI.

In short, ESI now abounds, and ESI cannot be

ignored by attorneys who want to win cases or

settle the case to their client’s major advantage.

The needed fundamental change in

searching information available.

Discovery of electronically stored informa-

tion is called e-discovery. E-discovery refers to

any process in which ESI is sought, located,

secured, or searched with the intent of saving

or using it in a lawsuit. The major efforts

required in e-discovery arise out of the sheer

volume of information to be searched.

A small business in 1980 might have had one

office worker and eight file cabinets of paper

constituting the business’s records. Those eight

file cabinets could hold 80,000 pages of infor-

mation. No one ever physically searched all

80,000 pages in the file cabinets for the informa-

tion he needed. Instead he went to the one or a

dozen file folders in which the information

likely existed to find needed information such

as the customers’ complaints in March, or the

“file copy” of a letter, or a contract proposal, or

the profit and loss statement for three years

ago. Anything else that might be relevant was

“not found” because it was not filed in the

expected file folder in the expected file cabinet.

Today that one office worker has a computer

with a minimum storage of 30 gigabytes for

document and information storage. If one

assumes the average word processing docu-

ment is 150 kilobytes, that office worker can

store 200,000 documents on his computer. Even

the smallest of businesses probably has an

external hard drive for backup with 250 giga-

bytes of storage capacity, storing previous doc-

uments and previous versions of documents.

So that one-office-worker-business today may

have the equivalent of 20 million pages of infor-

mation sitting in its computer and backup stor-

age media.

The change in default communication

method among employees sitting 50 feet apart,

from voice (by phone or intercom) to email has

produced a staggering amount of email. In

2006, the average office worker sent and

received over 60 internal and external email

messages each day!1That’s an average poten-

tial electronic storage of 18,000 messages a year

per employee.

Everything on the computer takes on a

form of life of its own and is duplicated and

saved. That email that is used today instead of

a telephone conversation is recorded, then

saved in a backup file in one storage location,

and a little later saved in an archive file stored

in another location.

Moreover, in this mass of information, with

documents duplicated in various drafts and

forms on the storage media, the pages of infor-

mation on one subject, or even the pages of one

contract, are not found in one specific place in

the computer’s hard drive. Communications

on a specific subject in a paper-focused world

went straight from the printer into a file

labeled with the subject. Now, electronic com-

munications on a specific subject are jumbled

with the vice-president’s received email con-

tained on the computer’s hard drive with Via-

gra ads and a Word document printed and put

on the bulletin board to tell everyone about

Jerry’s birthday cake in the coffee room. More-

over, the pages of any document are them-

selves fragmented and found jumbled on

numerous places on the hard drive. The bits

and bytes are only assembled into a “docu-

ment” and viewed on a compute monitor, or

printed, when the document is called for by an

appropriate search or command.

The good news is that — unlike discovery of

paper documents — even if the responding

party does not tell you where to look — it is prac-

tical and possible to find the relevant informa-

tion in the entire mass of ESI. Computer search

§45.1 BUILDING TRIAL NOTEBOOKS 45-2

programs make it possible for you, using a com-

puter, to find every reference to a subject of

interest in every document in the computer. You

would not want to pay attorneys for the time to

read 100,000 pages of paper, but you would

want to, (and could) use the average office com-

puter to search, in mere minutes, 100,000 pages

of electronically stored information.

The nature of ESI makes it amenable to inves-

tigation. First, ESI can be electronically searched

with ease, quicker and more efficiently than

reading a pile of paper documents. Second, ESI

is difficult to completely destroy, particularly if

it gets into a network. This is because the data

appears on multiple hard drives, and because

digital files, even if deleted, can be undeleted. In

short, ESI garners you more evidence than does

the process of looking in paper file folders in

metal file cabinets.

New approach to the foundation for intro-

duction of ESI.

The entire legal foundation for authenticity

previous to this century was based on looking

at the original physical record. That foundation

of physically looking at two pieces of paper and

seeing that they had the same words is no

longer possible with most data and documents

created today. Now information is stored in a

way that changes at a molecular level, chang-

ing as soon as it is created, changing every time

it is looked at, changing dynamically even

without human intervention, changing in ways

that cannot be stopped except by “freezing” the

action. Most of the time you can never look at

the bits and bytes of the exact original elec-

tronic record and thus see the image it would

have produced when first created. Those seek-

ing to introduce data and correspondence that

was preserved in ESI need to be alert to the

ways to authenticate the printed-out ESI.

Fundamental shift increasing affirmative

duties of lawyers.

It is important to educate yourself about e-

discovery if for no other reason than the court

rules of this century require attorneys to take

specific actions regarding “electronically

stored information,” at specified times, with

penalties for failing to take the actions. If you

are an attorney, you are required to know the

rules. For example, under Federal R. Civ. P.,

Rule 26(f) you must know what ESI informa-

tion is available from your client. It’s your pos-

itive obligation; you cannot be a mere passive

receipt of information from the client.

Failure to know what ESI your client has,

with the consequent failure to preserve evi-

dence, cannot only subject you and your client

to spoliation sanctions, it also can be the subject

of a malpractice complaint. Adding to your

task is the fact the average client does not

understand the need to preserve ESI. Nor do

clients understand the need to produce ESI.

Your duty is to see not only that the client

knows these duties, but also see that the client

complies with those duties.

Education of your client regarding preserva-

tion and production of ESI is only the begin-

ning for you. There is a whole new group of

actions you need to take because of the

expanded universe of information available to

you and because of the rules of procedure

which mandate additional steps to be taken.

The now present legal requirement for an

early “meet and confer” conference to discuss

what will be produced (or not produced) has

made it necessary for you to make determina-

tions early on regarding the extent of the ESI

your client has and what the other side has. The

court rules allowing agreed flexibility on what

will be produced, and how, and when, has

made it necessary for you to be an informed

and diplomatic negotiator about ESI discovery.

You have to stop “we-want-everything-you-

have” tactics, or you will get into trouble your-

self. If you ask for “all,” a demand for “all” is

going to come back to you.

In short, if you are an attorney handling liti-

gation, you not only can lose the case for want

of evidence you should have found; you can

get into big malpractice trouble if you do not

understand (1) electronic evidence, (2) elec-

tronic discovery, and (3) the electronic discov-

ery rules of court.

§45.2 The 2006 E-Discovery

Amendments in a Nutshell

Knowing the 2006 electronic discovery

amendments to the Federal Rules of Civil Pro-

cedure does not have to be difficult. All you

need to know, for practical work in federal

court litigation (or states following the federal

pattern), can be learned quickly.

45-3 ESI: TACTICS AND DISCOVERY §45.2

(Rev. 7, 9/11)