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

• 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 II

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

MCLE Article

I. INTRODUCTION

This article is Part II of a two-part series focusing on e-discovery rules relevant to trust and estate litigators. Part I was published in Volume 27, Issue 2, of the Trusts and Estates Quarterly. The goal of the two-part series is to arm the reader with the tools needed to properly conduct and respond to e-discovery in an efficient and effective way. This Part II focuses on responding to requests for electronically stored information ("ESI"), asserting appropriate objections, and compelling production of ESI in trust and estate litigation matters.

At the outset, the authors acknowledge that many federal cases are cited in this two-part series. Federal law is more developed than California law on the topic of e-discovery. Recognizing this reality, California state courts often find federal cases to be persuasive in the e-discovery context.¹ As a result, this two-part series relies heavily, but by no means exclusively, on federal cases.

II. RESPONDING TO REQUESTS FOR PRODUCTION OF ESI

A. Evaluation of ESI Requested

Once discovery requests are received, counsel should work closely with the client and any ESI consultant that has been retained to structure and then facilitate the collection of ESI from the responsive sources. Once that collection has been undertaken, counsel can review the documents for relevance, privacy, and privilege before production to the requesting party. In making this determination, counsel will want to undertake the following steps: (i) identify whether there is ESI responsive to the discovery requests, (ii) identify relevant electronic devices or sources from which the ESI can be harvested, (iii) identify whether the ESI is reasonably accessible from such identified sources, (iv) identify whether the requests require that the responding party translate any ESI into a different or readable format, (v) identify the type of ESI requested and form or forms of production requested, (vi) evaluate whether objections to the scope or form of ESI are appropriate, and (vii) based upon these answers, develop a collection plan to collect the relevant ESI in a format that allows counsel to review the information and produce it to the requesting party.

Hopefully, prior to receipt of discovery requests, counsel has already implemented the steps identified in Part I of this article to identify relevant sources of ESI, preserved the ESI in the client's possession, and met and conferred with the requesting party on the preservation of ESI and the form in which ESI will: be produced. Upon receipt of discovery requests, counsel should review the potential sources of ESI that are responsive to the requested discovery and either revise the existing ESI preservation plan or develop such an internal plan for the first time. The discovery requests may ask for ESI or identify sources of ESI that counsel did not previously consider. In such an event, counsel will need to inform the client of the need to preserve these new sources of ESI. Counsel will also need to review the discovery requests to determine the form of production that is requested. If native format or metadata is requested and appropriate, counsel will need to undertake collection efforts to preserve the requested metadata.

B. Duty to Undertake Reasonable Search for Responsive ESI

Each party responding to a request for production of ESI has a duty to search each and every source of ESI that is in the responding party's possession, custody, or control.² This includes information that is not in a party's physical possession, but that is controlled by or accessible to that party.³ The responding party must affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with the request for production of ESI.⁴

In addition, the duty of candor confers upon counsel the duty to employ only those means that are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement.⁵ In the context of e-discovery, this duty confers upon the attorney a responsibility for ensuring that their clients conduct a comprehensive and appropriate ESI search.⁶ An adequate investigation should include an analysis of the sufficiency of the ESI search and, when electronic documents are involved, an analysis of the sufficiency of the search terms and the locations.⁷ Failure to meet this duty may subject the attorney to sanctions resulting from failure of the client to produce responsive ESI.⁸

In trust and estate litigation, the scope of documents under a party's possession, custody, or control can vary depending on whether such party is responding in his or

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her role as a fiduciary and the type of fiduciary role that is held. A responding party acting as personal representative is in possession, custody, or control of any documents that the decedent could access.⁹ In addition, a trustee, personal representative, or agent under power of attorney has a duty to keep records of their administration.¹⁰ Incumbent with this duty is the fiduciary's obligation to search all such records in responding to requests for production of ESI. Fiduciaries may also have access to the decedent's digital assets under the Revised Fiduciary Digital Assets Act, which was enacted in 2016.¹¹ Careful consideration should be given to the breadth of information that is actually available to the fiduciary before claiming that any ESI is not possessed by the fiduciary or under the fiduciary's custody or control.

C. Considerations in Collection of ESI

Once ESI responsive to the document requests has been identified, counsel will need to develop a plan to collect it from the identified sources. Formulation of this plan will require that counsel consider who is going to collect the ESI and how it will be collected. Manual collection is performed by the client or by the ESI consultant to manually remove the documents responsive to the request from the electronic devices or other sources.¹² Manual collection can be performed by the client by printing, copying the files, or "drag and drop" to another file location or by an ESI consultant using tools to extract the information.¹³ Automated or computer-assisted collection involves using computerized processes to collect ESI meeting certain criteria such as automated searches, predictive coding or other technology-assisted review tools,¹⁴ or de-duplication of multiple copies of the same email.¹⁵ For a detailed discussion of each of these tools, see Part I of this article.

Depending on the sources of ESI and the allegations and circumstances of each case, both manual and automated procedures for collection of ESI may be appropriate.¹⁶ Absent an agreement on the search methods to be used, counsel should be prepared to explain and justify the choice of search methods, especially if counsel expects the requesting party to allege that ESI has not been adequately preserved or searched.¹⁷ If manual collection is performed by the client, counsel should direct the client where to search (e.g., which application and which electronic device) and how to perform each search. Keywords for searching emails or electronic devices linked to the subject matter, names of the parties, and other operative words and phrases should be provided to the client, along with date ranges and specific senders, recipients, and document types that the client should target. In certain circumstances it may be necessary to perform tests or samples using the search methodology to determine if the criteria are appropriate.

If collection of metadata is important to the particular facts of the case, use of an ESI consultant to collect the ESI and produce it will be important to avoid claims that the data has been altered. The act of merely accessing or moving electronic data can change the relevant metadata.¹⁸ For example, moving a word processing file from one electronic device to another changes the creation and modification dates found in the metadata.¹⁹ In such instances, ESI consultants can use specific tools designed for forensically-sound collection of ESI, which does not alter or change the metadata.²⁰ In instances where metadata is important it may even be necessary to obtain a forensic image of the electronic device, such as the decedent's phone or computer. A forensic image is a duplicate copy of the subject electronic device—a replication of each bit and sector, including all allocated and unallocated space on the device.²¹ A forensic image also contains all of the embedded, residual metadata.²²

In addition, even when not essential, collection of ESI with metadata intact in trust and estate litigation will make it easier for counsel to cull, search, and analyze the data internally. For example, collecting emails in native format from the client will allow counsel to sort and search the data set in many different ways (e.g., date, sender, recipient, attachments, keyword searches) that would be impossible if the client simply provided a printed copy of each email. Therefore, even if the requesting party has only requested that the information be produced in PDF, it may be advantageous for counsel to collect the ESI in native format so that the information can be analyzed and sorted prior to production, especially if there is a large volume of responsive emails. Manual review of documents prior to production for privilege or responsiveness can be one of the most expensive components of a production. The added efficiency of reviewing emails and other documents in native format for relevancy and privilege and the use of search terms and computer assistance (such as de-duplication) should not be understated and can save counsel an immense amount of time.

In trust and estate litigation, the relevant ESI will depend on the facts and legal issues in dispute, but the most common sources...