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It is now clear that electronic information is so pervasive and important in civil litigation in the United States that every civil litigator in Utah must know how to pursue and provide
electronic discovery, and every individual and company likely to bring or defend a civil lawsuit must understand the decisive impact of electronic discovery.
This article is a
primer for lawyers and their clients, both individuals and companies, who are or may become involved in a civil lawsuit as plaintiff or defendant.
The first section defines electronic discovery and outlines possible repositories of electronic evidence.
The second section explores the characteristics of electronic evidence
that make electronic discovery fundamentally different than paper discovery.
The third section explains why electronic discovery is so important.
The last section makes
suggestions both for seeking electronic discovery and for preserving and producing electronic information.
I.Electronic Discovery Primer:
What Electronic Discovery Is
"Electronic discovery" has become the common label for the formal process in civil lawsuits of the discovery of factual information that, at any time, has been created,
retained, stored, processed, converted, reviewed, produced or presented in electronic form by computers or other electronic media.
The phrase is common, however, only among those
who have already been involved in electronic document disputes. Recent discussions with lawyers, paralegals and law firm administrators who have not been involved in electronic discovery
revealed a number of other reactions as to what the phrase "electronic discovery" might mean, including: using Lexis or Westlaw for computerized legal research; using any of the
various available computer processes or software to convert paper documents to digital data for management in litigation; realizing that digital data are discoverable
"documents" within the meaning of Rule 34 of the Federal and Utah Rules of Civil Procedure.
"Electronic discovery" customarily refers to the formal process of
requesting or producing electronic information under Rules 26, 34 and 45 of the Federal Rules of Civil Procedure and similar Utah rules. These issues should be distinguished from two
related sets of issues that are beginning to receive more deserved attention.
One set is the issues created by lawyers' use of their own computers in producing legal work.1 The other set of issues arises from the use of electronic media to do "informal" discovery - i.e., investigative, unilateral, creative electronic fact research. The ascendance of the World Wide Web, and the development of gargantuan databases and sophisticated search engines, has made informal, unilateral electronic research as important as the formal electronic discovery discussed here.
The current range of lawyer attitudes about electronic discovery is remarkable. For some lawyers who have not been involved in electronic discovery, it still comes as a surprise
that electronic data are even discoverable "documents."2
There is a middle group of lawyers that is slowly, sometimes painfully, learning about electronic discovery. For example, in Jones v. Goord,3 the plaintiffs' lawyers requested a category of documents that, in retrospect, could have been interpreted to have included electronic documents. The requesting lawyers apparently did not think to press production of the electronic documents until six years into the litigation, however, even though those lawyers had known for years that the defendants had responsive electronic documents. After the defendants had produced the requested paper documents, plaintiffs belatedly moved to compel production of what they contended were "essential" electronic documents, arguing that the electronic documents would be easier and cheaper to handle and would allow statistical analysis critical to the plaintiffs' claims. The court denied the motion and prevented electronic discovery, largely because enormous expense had already been incurred in producing the paper documents, and because the plaintiffs were simply too late in realizing that electronic discovery might be valuable. In short, the plaintiffs could not get the electronic information that they deemed essential, and that the court acknowledged was relevant, because the lawyers waited too long to press for the information.
The third group of lawyers is those already introduced to electronic discovery issues. They are left to muse at the breadth of their duties to produce their own clients'
documents, to celebrate the power of electronic discovery in uncovering their adversaries' secrets and vulnerabilities, and to scramble to keep up with the dizzying pace of technological
change in electronic discovery.
Electronic discovery was recognized in the rules of civil procedure beginning in 1970.4 Courts began tussling with issues unique to electronic discovery in the early 1970s.5 Judge Thomas Greene's opinion in 1985 in Bills v. Kennecott Corporation6 became the most-cited electronic discovery case of the 1980s, and was prophetic:
This court need not dwell on the benefits computers provide over traditional forms of record keeping. The revolution over the last fifteen years speaks for itself. From the largest
corporations to the smallest families, people are using computers to cut costs, improve production, enhance communication, store countless data and improve capabilities in every
aspect of human and technological development. Computers have become so commonplace that most court battles now involve discovery of some type of computer-stored information.
108 F.R.D.at 462.7
In the 1990s, e-mail and other new forms of computer and electronic communication catapulted electronic information from the back room and the boiler
room to the library and office and boardroom and bedroom. Email and the internet transformed business and personal communication and created legal and ethical issues whose breadth we have
only begun to grasp. In a recent landmark opinion, U.S. District Judge Shira Scheindlin opined that "virtually all cases" involve the discovery of electronic data.8 The recent avalanche of electronic discovery cases suggests that she is right.
It is now harder to imagine where electronic information cannot be found than where it might. Here is a list of possible sources of electronic data to prime the pump of
imagination for other places to look: office computer hard drives, including metadata;9 home computers; laptops; personal digital assistants; network systems drives; servers; data from internet user groups; hard and floppy disks; email; calendars and appointment books; cell phone data; telephone logging and answering machine records; fax machine data and logs; building security logs; web sites; web logs; global positioning data from trucks and, increasingly, from cars; chat room data.
II.Why Electronic Discovery Is So Different than Paper Discovery
Some analysts argue that the process, duties and risks of electronic discovery are similar to those of paper discovery.10 But for the lawyer in the trenches who faces the risk of disciplinary action, or tort liability, or monetary discovery sanctions for violating these duties - and for the client at risk of discovery sanctions, tort liability for spoliation, and even criminal liability - the differences between paper duties and electronic duties are, well, shocking.
This section examines the characteristics of electronic discovery that have led to the creation of the new duties and risks.
A. Accessibility
When stored data
existed primarily on paper, the line between which documents must be searched and which not seemed brighter. In a case involving a large company in which the actions of a certain person -
say, Ms. Jones - were the subject of the action, Ms. Jones' files and the files of documents relating to her activities could be searched and produced. After agreeing to produce those
documents, a party could confidently respond that all documents relating to Ms. Jones that could be produced without undue burden had been produced. Few courts forced further search for
documents on the prospect that a stumbling search of huge deposits of random additional documents might disclose additional pertinent evidence.
B. Informality
There was
something about the formality, the ritual of putting ideas on paper, that made the writer circumspect and the recorded thoughts and feelings measured. Raw emotion or conspiracy were
expressed in person or on the telephone, and evaporated in the moment. Email, on the other hand, has seemed to invite astonishing candor and to tempt pettiness and chatter. And now a
whole new generation of media that lures balder candor is upon us, including computer chat rooms, video conferencing and telephone messaging. These media unflinchingly record what might
turn out to be unfortunate candor, and cause fits or jubilation for the lawyers and clients who find the preserved candor in discovery.
C. Invisibility
When documents
were paper, records managers seemed more consistently aware of which preserved communications still existed, and had document retention and destruction policies that were more or less
effective and more or less enforced. Electronic communications are less visible and less manageable. People throughout companies seem genuinely shocked in the heat of discovery battles by
how much evidence had been created and retained of which they had been oblivious. Companies have not yet mastered the retention and destruction of electronic documents.
D. Durability
Information swirling in electrons has created new legal and ethical issues both because in some forms the information has the half-life of a bubble, and in other
forms has the durability of dirt. New duties of evidence preservation have arisen exactly because, without intervention, important electronic evidence may quickly be overwritten or
erased, routinely and even innocently.
On the other hand, it is the near impossibility of truly destroying or hiding emails and other electronic data that has changed the rules in
other ways.
E. Retention Cost
The cost of retaining paper documents was sufficient to cause most companies to adopt policies of routinely and regularly destroying old
documents. Though those policies may not have been applied consistently, still it appears that paper documents were in fact consistently destroyed after a few years. With electronic
documents, retention costs (not counting the liability costs if the documents confirm some liability) are approaching nil, which has caused some to raise the question whether deliberate
destruction of electronic evidence is ever justifiable or cost-effective.
III. Why Electronic Discovery Is So Important
Electronic discovery is important, first, because
discovery is important in the American civil litigation. "Broad discovery is a cornerstone of the litigation process"11 in this country. The United States Supreme Court has recently affirmed its oft-repeated holding that American civil litigation "relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims."12
The second reason electronic discovery is so important is that electronic information in our society is so pervasive: most facts that will end up in the eye of some
litigation storm are now recorded, described, admitted, discussed, reified, denied or challenged in some electronic medium. In 2002, approximately 31 billion email messages were sent each day,13 which makes email the second most popular medium of communication worldwide, next only to voice.14 There will be an estimated 60 billion emails sent per day by 2006.15 Something less than 1% of all written human communications even reaches paper these days.16
IV. Seeking and Providing Electronic Discovery
Though a reading of the rules of civil procedure on their face would not provide any clue as to how the duties and
opportunities of electronic discovery compare to those of paper discovery, vast differences exist.17
This section makes various suggestions for handling electronic discovery in light of the new cases.
A.Both Parties
The first suggestion applies to both parties: meet and negotiate early, preferably at or before the Rule 26 conference, regarding electronic discovery.
The party seeking electronic evidence (of course, in some cases, each party will be seeking electronic information from the other) should use the conference to determine what electronic
evidence might exist and what computer and expert resources might be needed to get the evidence. The producing party has an incentive in this meeting to face the discovery questions early
and determine as much as possible about the scope of the duty to preserve evidence. Early stipulations about what electronic information must be retained and what may be ignored may
narrow the task for both parties of dealing with electronic information.
B. Seeking and Getting Electronic Documents
Here are suggestions for those seeking electronic documents.
1. Expressly Request Electronic Documents
First, specifically and explicitly request electronic information.
Though the rules include electronic data implicitly within the scope of any request for a "document," do not rely upon an implicit request, for two reasons.
First, you
are more likely to get the electronic data if you expressly demand it. In most of the cases in which requests for electronic data were denied or restricted, the fact that the requester
seemed not to have thought about electronic data when it issued broad requests for documents was a factor in restricting discovery. It is probable for the foreseeable future that lawyers
responding to document requests will under-produce electronic documents unless the request is explicitly for electronic documents.
Second, explicit electronic requests are likely
to be more powerful. For example, a litigation manager of a Fortune 500 company recently told the author18 that his company had just trebled the amount that it authorized for settlement of a wrongful termination claim because the ex-employee's lawyer served an explicit, well-craft request for electronic documents.
2. Narrow the Request
While courts continue to affirm the right of litigants to obtain broad discovery, overbreadth of discovery requests is the most common ground for
denying discovery. Moreover, in the few cases in which the cost of providing electronic discovery has been shifted to the seeking party, overbreadth of the document request is the primary
cause for shifting the cost to the seeking party.
3. Focus on the Benefit of the Information
Though a court will weigh numerous factors to decide whether to allow
electronic discovery and which party will pay for the discovery, the factors are designed to answer one fundamental question: How does the potential benefit of the discovery compare to
the cost or other burden of the discovery? Be prepared to identify the anticipated benefit of the discovery that you seek.
4. Specify the Production Format
In most cases,
you will want electronic information to be produced in electronic form, since much important information will be lost if you accept a paper "copy" of the electronic data. You
should typically seek paper versions only to the extent that they contain marginalia or information other than is contained in the electronic version.
5. Know the Technology or the Technician
Through research, seminars or consultants, learn about the latest in document search and retrieval technology, sources of potentially
important electronic evidence, and technology for managing and extracting the most important information as cost-effectively as possible.
C. Preserving and Producing Electronic Documents
Here are some basic principles for parties and lawyers producing electronic information.
1. Locate Relevant Documents
The lawyer and client should meet as soon as they are aware of a reasonable likelihood that documents might be pertinent to legal claims. They should brainstorm where responsive
electronic data might be found. Initially, invoke the rule of brainstorming - that there are no outlandish suggestions, and all conceivable locations must be considered. Use the list of
sources of electronic data outlined above to prod memory.
2. Preserve Relevant Documents
The duty to preserve evidence is vastly more demanding than the duty that applied
in paper discovery. The timing, for example, is different. In paper discovery, in general, a party could make whatever mandatory disclosures were required and then wait to search for
documents until a document request or subpoena had been served. In part because electronic evidence might routinely be overwritten or erased daily or weekly, the recent cases demand that
a party preserve documents before they are requested. In most jurisdictions, the preservation duty now attaches as soon as any legal claims are reasonably foreseeable.
Together,
the lawyer and client have the affirmative duty to communicate the need to preserve relevant documents to all persons over whom they have control. Imagine all the people who might have
created or received relevant data in some form. In addition to the creators and addressees of any communication, consider secretaries, assistants, information technology personnel,
managers, clerks, officers, directors, friends, relatives, accountants and investors. Remember that, because of the recent dynamics of the workforce, "'former employees' now populate
this planet."19 Consider whether anyone who formerly had any of the above relationships to the transaction might still have pertinent electronic data.
Create a
written, detailed document preservation plan from the beginning that specifies who will do what by when to assure that appropriate documents are not destroyed.
3. Take Responsibility
The lawyer's duty in comparison to the client's is more demanding than before. Now a lawyer must take affirmative action to make sure that the client
understands in detail what documents might become relevant in an action, and where such documents might be located (most people within a client organization will be genuinely unaware of
all the locations where potentially relevant information might reside).
4. Consider a Consultant
Consider whether an outside consultant would be useful to assist in the
production of electronic information. A consultant might be useful in locating and mining the myriad sources of electronic data, in providing evidence as to the completeness of the
production, and in protecting privileged information.
5. Evaluate Retention Duties
Determine whether your adversary has violated any state20 or federal statutory or regulatory duty to maintain or preserve documents. For example, certain employment records must be retained for two years after a decision not to hire a candidate, and publicly-traded companies have broad new document retention duties under the Sarbanes-Oxley Act of 2002.21 If your adversary claims not to have documents that by statute or regulation it is required to have, this fact can compound the probability of sanctions for not having the documents.22
Footnotes
1. See, e.g., Lise Pearlman, Ten Ways to Risk Ethical Nightmares With Your Computer, GP Solo, Vol. 20, No. 4 (June 2003) (discussing ethical issues relating to a lawyer's use
of computers and electronic communication media, such as encryption and privilege, electronic advertising and billing for electronic services).
2. In the world outside litigation,
there is obviously semantic tension as to whether "document" is limited to paper or includes electronic data. Some legal commentators have suggested that in litigation usage the
term "document" should be restricted to paper. E.g., Lisa M. Arent, EDiscovery: Preserving, Requesting and Producing Electronic Information, 19 Santa Clara Computer &
High Technology L.J. 131 n.5 (2002). To be sure, since the main medium of preserving teachings has been paper since sometime after 105 AD when paper apparently was invented in China,
"document" has mostly signified paper.
But the etymology of "document" shows that the term can and should encompass electrons. The root of "document"
does not imply paper, but simply "to teach." Since electronic media are now the main repositories of knowledge or teachings, "document" has begun to shed its paper
bonds and has embraced electronic media. It will likely continue to do so.
Rule 34 of both the Federal and Utah Rules of Civil Procedure defines "document" broadly to
include "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form." The cases
uniformly interpret this to mean that discoverable "documents" include all electronic data without limitation. This article similarly uses "document" in the broadest
sense, including all electronic data of any form.
3. No. 95 Civ 8026, 2002 U.S. Dist. LEXIS 8707 (S.D.N.Y. May 15, 2002).
4. The 1970 amendments to Rule 34 of the Federal
Rules of Civil Procedure expanded the definition of "documents" to include "data compilations from which information can be obtained, translated, if necessary, by the
respondent through detection devices into reasonably usable form." Utah has also adopted this definition in Rule 34 of the Utah Rules of Civil Procedure.
5. E.g., Adams v. Dan River Mills, Inc.,
54 F.R.D. 220 (W.D. Va. 1972) (holding that Rule 34 allowed the discovery not only of printouts in a usable form, but also of "computer input information such as computer cards or
tapes").
6. 108 F.R.D. 459 (D. Utah 1985).
7. Judge Greene's statement that as of 1985 most court battles involved electronic discovery disputes is not supported by the
reported cases or commentaries. Until the late 1990s, electronic discovery issues in the reported cases were scarce.
8. Zubulake v. UBS Warburg, L.L.C., No. 02 Civ. 1243, 2003 U.S. Dist. LEXIS 7939 (S.D.N.Y. May 13, 2003).
9. "Metadata" is information created by the computer or communication medium that is in addition to the data that the creator of the data intended to create.
10.
It is true that neither the written ethical rules nor the rules of civil procedure have yet been amended to reflect the pervasive new duties attendant to electronic discovery. But the
duties themselves, as fashioned by courts faced with a new reality, have changed significantly from the duties attached to paper discovery.
11. Jones v. Goord, No. 95 Civ. 8026, 2002 U.S. Dist. LEXIS 8707, at *1 (S.D.N.Y. May 16, 2002).
12. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
13. Grace V. Bacon, Fundamentals of Electronic Discovery, 47 Boston Bar Journal 18 (2003).
14. Ron Miller, Email: The Other Content Management, Econtent, Jan. 2003, (http://www.econtentmag.com/Articles/ArticleReader.aspx?ArticleID=882 (viewed July 15, 2003)).
15. Bacon, supra note 13 at 18.
16. www.sims.berkeley.edu/research/projects/how-much-info/index.html.
17. A detailed analysis of the new duties and opportunities is
beyond the scope of this article. The following is a list of the leading recent cases that have created or recognized these astonishing new duties: Park v. City of Chicago, 297
F.3d 606 (7th Cir. 2002); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 (2d Cir. 2001); Zubulake v. UBS Warburg L.L.C., No. 02 Civ. 1243, 2003 U.S. Dist. LEXIS 7939
(S.D.N.Y. May 13, 2003); Metropolitan Opera Assn v. Local 100, Hotel Employees and Restaurant Employees International Union, 212 F.R.D. 178 (S.D.N.Y. 2003); Jones v. Goord,
No. 95 Civ. 8026, 2002 U.S. Dist. LEXIS 8707 (S.D.N.Y. May 15, 2002); Rowe Entertainment, Inc. v. William Morris Agency, Inc., 2002 U.S. Dist. LEXIS 8308 (S.D.N.Y. May 8, 2002); In re Triton Energy Ltd. Sec. Litig.,
No. 5:98CV256, 2002 U.S. Dist. LEXIS 4326 (E.D. Tex. March 7, 2002); Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. Va. 2001); McPeek v. Ashcroft, 202 F.R.D. 31
(D.D.C. 2001); Simon Property Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000); Linnen v. A.H. Robins Co., No. 97-2307, 1999 Mass. Super. LEXIS 240 (Mass. Super. June 15, 1999).
18. Statement used with permission.
19. Susan J. Becker, Discovery of Information and Documents from a Litigant's Former Employees: Synergy and Synthesis of Civil Rules,
Ethical Standards, Privilege Doctrines, and Common Law Principles, 81 Neb. L. Rev. 868 (2003).
20. E.g., Park, 297 F.3d at 616 (in a state action, the Illinois Record Act might create a basis for spoliation of employee records; in this federal action, EEOC regulations applied)
21. Pub. L. No. 107-204, 116 Stat. 745.
22. E.g., Byrnie, 243 F.3d at 108-09 (intent in destroying documents is irrelevant to a claim of spoliation if the documents
were required by statute or regulation to be kept). See generally Steffen Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 St. Mary's L. J. 351, 368-69 (1995)
(collecting cases relying upon breach of statutory or regulatory document retention duty to satisfy some element of sanctions or tort liability for spoliation).
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