Let's Get Digital! Esi in Trust and Estate Litigation, Part 1

• Publication year: 2021
• Author: By Scott A. Fraser, Esq.* and Matthew R. Owens, Esq.**

LET'S GET DIGITAL! ESI IN TRUST AND ESTATE LITIGATION, PART 1

By Scott A. Fraser, Esq.* and Matthew R. Owens, Esq.**

MCLE Article

I. INTRODUCTION

The time has come to abandon the blurry, barely legible PDF copies of emails and other documents in discovery. Most documents used in trust and estate litigation matters are easily accessible in their native formats, which makes it much more efficient to produce and search through them. No longer should trust and estate practitioners print documents to respond to discovery requests, nor should they have to review paper copies when they receive discovery responses. This is especially true at a time when practitioners find themselves working remotely more than ever before. Indeed, it is time to get digital.

This article is Part I of a two-part series focusing on e-discovery rules relevant to trust and estate litigators. The goal is to arm the reader with the tools needed to conduct and respond to e-discovery properly and in an efficient and effective way. The article addresses common sources of electronically stored information ("ESI") targeted to trust and estate litigation matters, as well as the procedures used to obtain ESI. The article also discusses the importance of advising clients on preserving ESI in order to avoid evidence spoliation and to keep counsel in compliance with ethical rules surrounding e-discovery.

II. INITIAL EVALUATION OF E-DISCOVERY ISSUES

It is rare that a trust and estate litigation case does not involve some form of discovery of ESI. At the beginning of each case, counsel must first determine which e-discovery issues exist, the extent of such issues and anticipated costs, and whether it is necessary to retain an expert to assist.

A. Every Attorney Has a Duty of Competence When Handling E-Discovery Issues

The California State Bar has specifically stated that maintaining learning and skill consistent with an attorney's duty of competence includes keeping abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology and e-discovery.¹

The scope of an attorney's duty of competence depends upon the nature and complexity of the e-discovery at issue in each case. The California State Bar has provided the following framework: (i) attorneys must assess at the outset of each case what e-discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side; (ii) if e-discovery will probably be sought, attorneys must assess their own e-discovery skills and resources that will be needed to meet the demands of the potential e-discovery issues; and (iii) if attorneys lack such skills and/or resources, they must try to acquire sufficient learning and skill, or associate or consult with someone with expertise to assist.²

Furthermore, in assessing the scope of e-discovery in the case and their competence to perform the necessary tasks, attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following: (i) initially assess e-discovery needs and issues, if any; (ii) implement/cause to implement appropriate ESI preservation procedures, (iii) analyze and understand a client's ESI systems and storage; (iv) advise the client on available options for collection and preservation of ESI; (v) identify custodians of potentially relevant ESI; (vi) engage in competent and meaningful meet-and-confer with opposing counsel concerning an e-discovery plan; (vii) perform data searches; (viii) collect responsive ESI in a manner that preserves the integrity of that ESI; and (ix) produce responsive non-privileged ESI in a recognized and appropriate manner.³

The e-discovery issues will be different for each case but, in most trust and estate matters, the issues that arise the most often are searches and retrieval of information from personal computers and smartphones and searches and culling of information from emails. Counsel in trust and estate litigation matters should expect that they will need working knowledge of the e-discovery issues concerning these common sources of ESI.

B. Use of Co-Counsel, Experts, and Third-Party Providers

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The only way attorneys who are not competent in the law and practice of e-discovery can fulfill their ethical duty is (i) by taking the time and considerable effort needed to become competent, or (ii) by bringing in competent legal counsel to assist.⁴ Attorneys may also hire experts, ESI vendors, and other third-party providers to assist with the matter, and it is often prudent to do so.

If the attorney lacks sufficient skills or resources and associates or consults with someone with expertise, the attorney must still supervise the work of the co-counsel or expert.⁵ The duty to supervise and the ultimate responsibility for competence rests with the supervising attorney and is a non-delegable duty.⁶ Therefore, in order to competently supervise the co-counsel or expert, the attorney must remain regularly engaged in the e-discovery work and must also educate everyone involved in the e-discovery workup about the legal issues in the case and the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and any risks associated with the e-discovery tasks at hand.⁷

C. Initial Evaluation of E-Discovery Issues

Counsel should discuss with their clients early in the representation the topic of evidence they may have in their possession, including ESI. It is critical to identify all sources of ESI through discussions with clients so that evidence may be preserved and requests appropriately targeted. If a lawsuit has already been filed, then there is no question the client must preserve all ESI. Even before a lawsuit is filed, the client may have an obligation to preserve ESI if litigation is reasonably anticipated.

The following is a non-exhaustive list of sources of ESI to consider when evaluating the potential e-discovery issues in a case:

• What electronic devices were used by the decedent—computer (desktop or laptop), smartphone, personal digital assistant (PDA), tablet?
• What operating system does each electronic device use—Mac, Windows, Android?
• Are any of these devices password protected and, if so, who knows the password?
• What applications did decedent use? Examples include:
• Accounting—QuickBooks
• Calendaring—iCalendar, Outlook, Google
• Eating/diet—MyFitnessPal
• Finance—Venmo, Paypal, cryptocurrencies
• Medication manager—Medisafe (medication manager)
• Messaging—text, iMessage, WhatsApp
• Social media—Facebook, Instagram, Twitter
• Spreadsheet—Microsoft Excel, Google sheets
• Web browser—Chrome, Firefox, Safari, Internet Explorer, Bing
• Word-processing—Microsoft Word, Notes, Google Docs
• What email provider did decedent use—Gmail, Yahoo, Outlook?
• Did the decedent use any wearable electronic devices—Apple Watch, Fitbit, Garmin?
• Did the decedent use any internet of things (IOT) home devices or home security electronic devices—Nest or Ring security camera?
• What electronic storage devices were used by decedent? Examples include:
• Hard drive, flash drives, CD-ROM, DVD, external hard drives
• Cloud storage (Box, Dropbox, Google Drive, iCloud)

Other sources of ESI might be important depending on the type of proceeding. For a long-term trust administration, counsel may want to determine how the trust records are stored (e.g., paper, electronic storage device, or in the cloud). In an action involving a contested accounting, counsel may also wish to determine whether the fiduciary used any accounting software, such as QuickBooks. The scope of the questions on which the attorney will need to focus will depend on the facts and legal issues in dispute in the litigation.

III. PLANNING FOR E-DISCOVERY

Once counsel has initially ascertained the scope of the ESI issues in the case, counsel must take appropriate steps to preserve that data so that it can be appropriately and accurately analyzed in the discovery process.

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A. Preservation of E-Discovery

1. When the Duty to Preserve is Triggered

Steps must be taken to preserve ESI as soon as litigation is filed or reasonably anticipated. "[A] litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action."⁸ The duty attaches "from the moment that litigation is reasonably anticipated."⁹ Destruction of evidence "in anticipation of a discovery request" is a misuse of the discovery process, potentially warranting terminating sanctions.¹⁰ "Spoliation [of evidence] is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation."¹¹ A litigant has a duty to preserve evidence, even if the evidence belongs to them.¹² If a litigant destroys evidence, even inadvertently, terminating sanctions may be imposed in the form of a court order striking the defendant's answer and entering a default judgment.¹³ In cases of intentional spoliation, terminating sanctions are appropriate in the first instance even without any violation of a prior court order.¹⁴

As soon as the duty to preserve is triggered, counsel should provide clear instructions to clients on identifying ESI and the method for preserving it. This usually means sending an evidence-preservation letter (also known as a litigation hold letter) to your own client. It is often best to notify clients in advance that they will be receiving such a letter so it does not come as a surprise. The letter can be perceived as harsh when sent to clients, so discussing it in advance provides an opportunity to discuss the importance of evidence preservation so the letter is better received. Below is sample language for an evidence-preservation letter in a case where a litigant may seek the decedent's devices and ESI stored on them.

You must preserve all documents, evidence, writings, written

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