ESI: Tactics and Discovery

AuthorLeonard Bucklin
45-1 (Rev. 7, 9/11)
45. ESI: Tactics and Discovery
§45.1 Educate Yourself About E-
Discovery Before You Have a
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
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
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.
(Rev. 7, 9/11)

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