Preserve or Perish; Destroy or Drown - Ediscovery Morphs Into Electronic Information Management
| Publication year | 2006 |
| Citation | Vol. 8 No. 2006 |
Electronic discovery—including the contents of e-mail messages and/or the deletion of e-mails—has driven the outcome of many high-profile cases. We live in a progressively more digital world. Thus, when disputes ripen into litigation, clients, attorneys, and judges have had to focus increasingly on preserving, gathering, culling, reviewing, and producing electronic information. The complexity of information technology (IT) and the costs of mastering IT have burgeoned. Only some eDiscovery issues are resolvable by resort to traditional discovery principles. Consequently, many unique digital issues have infiltrated not only civil litigation, but also companies' overall records policies, procedures, and protocols.
A. Introduction: Digital Information's Pre-Eminence
Electronic discovery2 has driven the outcome of many recent high-profile cases. For example, the litigation and settlement of proceedings involving Merck, Phillip Morris, Adelphia, Arthur Andersen, Boeing executives, Enron, Frank Quattrone, Martha Stewart, and Tyco have centered on the content of e-mail communications and/or the deletion of e-mails.3
Why? Because we live in an increasingly digital world. In the modern age, less than 1% of business information is being created exclusively in paper form.4 Thus, upwards of 99% of the world's information initially existed as a data file.5 Though estimates vary, in most companies, 70% to 95% of information ends up being stored only in electronic form.6
Accordingly, when disputes ripen into litigation, clients, attorneys, and judges have had to focus more and more on preserving, gathering, reviewing, and producing electronic information. Many eDiscovery issues are resolvable by resort to traditional discovery principles and strategies. Yet, over the past few years, some unique electronic information issues—such as preservation obligations and cost-shifting—have increasingly crept into civil litigation.
B. Liability Evidence—the Quest for "Smoking Guns"
In general, a requesting party seeks to fulfill the overall discovery goal of developing evidence to support a claim or defense. Likewise, a requesting party also pines for the revelation of the proverbial "smoking gun" e-mail or other electronic files. As one commentator so aptly pointed out:
Once discovery begins, the chase is on for . . . memos admitting liability, deleted design documents, and other documents never intended to see the light of day. . . . It has been proven time and time again that e-mails are fertile ground for unearthing damaging documents. Individuals believe them to be private communication.7
E-mail authors tend to include candid comments that they would censor from other forms of communication, either written or oral. once such comments morph from private to public during the discovery process, they can have significant impact.8
1. Damaging E-mails
Ironically, in the seminal eDiscovery case of Zubulake I,9 a paper copy of a smoking gun e-mail played a crucial role. Relatively late in the discovery process, that hardcopy e-mail message helped convince a court to order the disclosure of the electronic versions of many additional e-mails. in that employment-discrimination and retaliation lawsuit, the plaintiff had a packrat-like tendency to retain many paper copies of e-mails. She "produced over 450 pages of relevant e-mails, including e-mails that would have been responsive to her discovery requests but were never produced by [the defendant]."10
Thus, in resolving the first of five opinion-generating disputes in the Zubulake saga, the court agreed with the plaintiff that the defendant likely possessed additional pertinent e-mails warranting restoration from back-up tapes. in particular, Zubulake I reasoned that the plaintiff "ha[d] already produced a sort of 'smoking gun'—an e-mail suggesting that she would be fired 'ASAP' after her [Equal Employment opportunity commission (EEOC)] charge was filed, in part so that she would not be eligible for year-end bonuses."11
Whether or not a plaintiff is a hardcopy hoarder, hope springs external as to unearthing gold nuggets, egged on by some widely publicized examples.12 For example, a chevron corporation subsidiary was apparently induced to settle a sexual harassment claim in 1995 for $2.2 million, based on unearthed evidence that included an e-mail containing such jokes, such as "'[twenty-five] reasons beer is better than women.'"13 Similarly, in one of the fen-phen diet drug litigations, a plaintiff's computer forensics experts uncovered a damaging e-mail message, which was ultimately leaked to the press. The message is universally claimed to have read: "'Do i have to look forward to spending my waning years writing checks to fat people with a silly lung problem?'"14 in many recent criminal cases, one or more indiscreet e-mails have been pivotal.15
More recently, in one of the Merck product liability cases based on the Vioxx drug, a pivotal trial exhibit was an e-mail message stating, "'The possibility of increased C.V. events [like strokes or heart attacks] is of great concern . . . . I just can't wait to be the one to present those results to senior management.'"16 "'C.V.' was scientific shorthand for cardiovascular problems like strokes or heart attacks."17 That e-mail was written by Dr. Alise Reicin, a Merck scientist, in 1997, two years before Merck began selling Vioxx.18 The ultimate result in that Texas jury trial was a plaintiffs verdict of $253,500,000.19
Among the many people bitten by the e-mail bug in the court of public opinion are former Federal Emergency Management Agency (FEMA) Secretary Michael Brown,20 and an international law firm's senior associate ridiculed for an e-mail string in which he repeatedly asked a secretary to reimburse him four British pounds (about seven u.S. Dollars) for dry-cleaning expenses resulting from a lunchtime ketchup spill.
Back in the day, such damaging documents might have remained undetected because they were buried in a mountain of boxes of paper. Now, however, automated search and retrieval methods exist and keep becoming more robust. Consequently, such smoking gun e-mails have morphed into possibly attainable brass rings.
2. Damaging Internet Use and Blog Postings
In addition to chatrooms, online bulletin boards, and Web surfing, there is now the "blog," also known as "weblog." A blog is an often updated Web-based diary that has become the "hottest phenomenon on the internet."21 Built on a conversational model, paradoxically, a blog is often not only intimate, but also encourages public discussion.22
One ramification of employee blogs can be "doocing"—namely, the firing of an employee for his or her posting of negative comments about the company on a personal blog.23 The ramifications for employers from the content of employee blogs or from leaks to non-employee blogs include intentional24 or unintentional25 disclosure of confidential information, and vicarious liability for content deemed to be harassing.
As to harassment, even non-sponsored bulletin boards can be so closely related to the environment and/or so beneficial that they are deemed part of the workplace.26 Moreover, employee Web-surfing can entail visiting pornographic websites,27 not only cutting into productivity but potentially creating a hostile work environment.
On the other hand, as to innocent Web-surfing on company time, the law is still developing. A recent administrative decision analyzed non-business Internet use for personal needs, such as checking on weather reports or finding a store location.28 The ruling deemed such use of the Web for a "non-work-related matter to be a minor transgression."29 The judge deemed the Internet to be the "modern equivalent of a telephone or a daily newspaper, providing a combination of communication and information that most employees use as frequently in their personal lives as for their work."30
3. Damaging Metadata and Embedded Data
As discussed in Section III(D) infra, metadata is "data about data." File system metadata "describes when a file was created, where it was stored, and what programs the computer uses to help access the file."31 More significantly, an electronic file—especially if disseminated as an e-mail attachment—may contain embedded data, i.e., evidence of prior revisions that could come back to haunt the sender.32
There are concerns that embedded data may be hidden in documents drafted by counsel on one side,33 or counsel on both sides (such as settlement agreements34 and/or stipulations). Significantly, a recipient can manipulate a file to "peel back the layers" to see prior iterations of a file's contents or use a tool to extract metadata in searchable form. There are heightened confidentiality concerns for attorneys who, like other drafters, often use "File/Save As" to adapt a file created for one client to a second client's needs.35
Yet all computer users are subject to the nuances of word processing and spreadsheet files.36 In the last year alone, those bitten by the metadata bug include high level individuals at the Pentagon, the British Prime Minister's office, the United Nations, the Democratic National Committee and the California Attorney General's office.37
Beyond the scope of this paper is a discussion of the range of views espoused by bar associations and courts as to the obligations of a recipient of inadvertently disclosed metadata.38 Suffice it to say, though, that once confidential information gets to an adversary, he or she will remember the content, independent of whether the misdirected information ends up being returned to the sender.
For further discussion regarding metadata in client-created files, refer to Section 111(D)(4), infra, about recent litigation developments on the obligation to produce electronic files with the...
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