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The 800-Pound E-Discovery Gorilla

Ethics and Amended Federal Rule 26

Amendments to the Federal Rules of Civil Procedure concerning “e-discovery,” or the discovery of electronically stored information, went into effect Dec. 1, 2006. Specifically, the new federal rule 26(a)(1)(B) requires parties to provide, without discovery request, “a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody and control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.”

The commentary says that “The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.” FRCP, Comments to Amended Rule 26, subdivision (b)(2).

Although such automatic disclosure isn’t required in state courts, it is reasonable to assume that the various jurisdictions will rule that this type of discovery is appropriate if requested. It is important to put the opposing side of litigation under a discovery request before the electronic date disappears.

The first and foremost issue before us is whether those seeking information are doing a complete and adequate job representing our clients. Lazy omission in preparing for litigation is as wrong as an intentional ethical violation and much more prevalent. Electronic information has been the 800-pound gorilla in the living room that most litigators have ignored. It is a different world than the one we learned in law school. Even recent graduates receive little training to match the challenges of the digital age.

Let me first confess that I am one of those attorneys who did not have the technical background to face the new challenges of today’s discovery efforts. This puts me in a good position to write to others playing catch-up and provide some basic information and advice. Additionally I must give credit to Craig Ball, a Texas Trial Lawyer from Montgomery, Texas. I have gathered technical information from a series of articles he published in the Tech section of the Texas State Bar. If you can not access these articles, I refer you to www.craigball.com.

The problem the requesting attorney will most assuredly encounter is the opposing counsel asking his non-tech company rep, “Do we have any electronic information?” To which he will receive and pass on to you a negative response. Your reaction should be: “Oh really?” You should ask if a reasonable search was made for emails in the following places:

Each employee’s computers—desk top and lap top
The department and company server
The mirror server
Backup for the server
Computers of the recipients of the emails
Emails residing in active files
Emails stored with local providers
Network repositories
Remote servers
Copies to third-party systems
Removable media
Achieved email
Email stored in other formats?

The list goes on. One of the ethical questions is when have you spent more time and money than could reasonably yield results searching each possible pocket of information? This is an especially sensitive question when an attorney is working on a contingent or fixed rate fee. An expert can save a great deal of time and money with suggestions of format and search capabilities.

Think of other electronically stored data and where it might be stored:

PowerPoint presentations
Cell phones
Blackberries
Voice mail
Instant messaging
Databases
Word documents
Digital cameras
CD
DVD or other video storage
PDF files
Spread sheets

The list is endless.

Once this information has been gathered, then the issue becomes whether there are data about the data in what was produced. The DNA of the electronic information is “metadata.” Depending upon how careful the opposing party has been to keep its data purged of metadata and the expertise you or your forensic data expert has, there can be much more relevant information in what does not appear on the printed hard copy. For instance, a document sent back and forth among several employees of a firm could receive many edits and comments which are amended or excluded from the final draft. The electronic version may well still have the information as to all excluded sections or comments and the identity of the authors of each. Imagine the possible ramifications.

One keystone to the electronic discovery practice is the “preservation demand” letter to the opponent. Although, in federal court, the discovery is automatic, a pre-litigation letter should be sent to put the parties under an obligation to not purge hidden information. This kills that twilight time when the potential party could argue that it was merely instigating a new company policy and was not on notice of a lawsuit or the need to preserve metadata.

The letter should carefully list the type of electronically stored data and the data systems or archives you will be seeking to review and demand that the company guard against deletion by any of its employees or agents. In this regard, demand that routine destruction should also be stopped. Your letter should specifically refer to preservation of metadata. List specifically the categories of information and dates of inquiry you will be seeking. Imagine you are the judge at a later date trying to determine if your demand was reasonable and clear.

Please understand that this description of a preservation letter is not an inclusive check list and I recommend that you talk to an expert to develop a form letter that you can alter as new law comes in on the subject and you discover ways some people will try to get around their obligation to respond in good faith to your notice.

There are many ethical questions that arise from this technological advance. For instance, what if a client wants his file back? He owns the file and has the absolute right to all of its contents. However, since my office is creating virtual e-files, do I give him the electronic version with all its metadata? What about the emails among staff or attorneys about the client that are not part of the litigation file? If an attorney receives the e-files and discovers metadata, can it be purged after discovery has begun or after a notice letter has been sent prior to litigation? What if an attorney receiving e-discovery realizes privileged information exists in the metadata? The list of thorny questions is never-ending.

Attorneys should familiarize themselves with the concept of electronic data and more specifically metadata and the potential risks it presents to the producing party and the need by the requesting party to discover any discoverable information not readily available in the printed documents. Inadvertent disclosure of metadata containing privileged information could result in an ethical dilemma for attorneys on both sides of the discovery. Even during litigation, attorneys have a duty to inform and oversee their client’s data management techniques and should ensure that no information is lost which could lead to sanctions from the court.

A survey of recent opinions concerning e-discovery issues follows on the next page.

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