Requesting and Responding to Electronic Discovery

by

Michael R. Arkfeld, Esq

Because of the proliferation of e-mail and other digital communication formats electronic information discovery is necessary in every case.  For that reason it is imperative that you formulate a discovery plan that involves not only the request for electronic information but also a plan to respond to requests for electronic information from your clients.

In addition to e-mail many other types of electronic data may be important to your case such as word processing documents, calendaring systems, photographs, accounting records, telephone records, bank records, etc.  Also Internet activity such as which web sites were viewed, and by whom, chat rooms, and list servs may be relevant to your case. For many of you these technology areas are new and require additional study and research to understand their implications.

The following are some broad-based considerations for framing a request for discovery of electronic information as well as responding to a request for such information from your client.  These considerations will focus on court procedural rules and case law that may become relevant in your matter.  Also, be aware that there may be several objections to your request for certain electronic records such as privacy concerns, fishing expedition allegations, privileges, and other objections.  You will also want to consider issues such as cost of production, cost of reviewing electronic information, form of production, scope and disclosure and spoliation issues.  For example, the costs associated with electronic discovery can in some cases be substantial if you are involved with legacy data systems. 

The Law

Federal Rule of Civil Procedure 26(a)(1)(B) requires a party to provide to other parties "a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and the disclosing party may use to support its claims or defenses . . . “ The court in Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94CIV2120, 1995 U.S. Dist. LEXIS 16355 (S.D.N.Y. 1995) held that "today it is black letter law that computerized data is discoverable if relevant."  In Bills v. Kennecott Corp., 108 F.R.D. 459, 462 (D. Utah 1985) the court stated that ("[c] omputers have become so commonplace in litigation that most court battles now involve discovery of some computer-stored information.”

Framing an Electronic Discovery Request

Initially, it is important to focus on the specific electronic information that you are seeking.  This information will depend on the type of case that you are litigating.  For example, in a sexual harassment lawsuit any e-mail between the perpetrator and the victim will be of substantial importance.  Also, any other e-mail that the perpetrator may have sent to other victims may be important to establish past improper acts. In any case that you have one must brainstorm the possible electronic information available in a case without submitting an overbroad request to the opposing party.  Otherwise the opposing party may return the favor when seeking electronic discovery from your clients. 

To assist you in framing a request it is suggested that you consult with your information technology managers, experts, or others who will be able to explain to you the different electronic information formats and locations where case information may be located.  As a reminder the courts will be hesitant to allow you to engage in an electronic fishing expedition. Also, to seek electronic information you may need to understand the opposing party’s computer system configuration, application software and utilities that they use, backup and retention periods and other information such as names, logons, passwords and information about any encryption programs. 

An example of some of the legal objections to be concerned about include:

·      Overbroad Request – In Lawyers title insurance Corp. vs. United States Fidelity and guaranty Co., 122 F.R.D. 567 (D.Ct. Cal. 1988) the court held that the mere possibility that when the parties "might not produce all relevant, unprotected documents" was not a sufficient reason for mandating opposing party to disclose its entire information management computer system. 

·      Burdensome – In PHE, Inc. vs. Department of Justice, 139 F.R.D. 249 (D. Ct. D. of Col. 1991) the Plaintiffs objected to interrogatories submitted by the Department of Justice on the basis of them being burdensome.  The court found that the plaintiffs would only have to occur “modest additional expenditures" and therefore required the disclosure. 

·      Cost  - In Bills v. Kennecott Corp., 108 F.R.D. 459, 463-64 (D.C. Utah 1985) the court refused to allocate costs of producing computer data to the requesting party and held that "information stored in computers should be as freely discoverable as information not stored in computers". 

 One of the first issues that you should consider in requesting electronic information is the possible destruction, deletion or alteration of electronic information.  Many businesses have document retention policies that routinely destroy information after certain period of time.  For example, some businesses retain e-mail for only 30 days.  If destruction of this data will impact your case than immediately send a letter to the opposing party asking them to preserve any and all electronic and paper information relating to your case.  This can be done even prior to the filing of your case and will put the opposing party on notice that they have to retain this information.  In the event they fail to do so the courts have been aggressive in using their authority to fine the business client, impose costs on the opposing party, allow for a spoliation instruction, or enter a default judgment against the offending party.

In the event that you have any information that would establish that the opposing party is intentionally altering or destroying e-mails are other electronic information pertinent to your case you may want to file a motion for protective order with the court.  In the Playboy Enterprises, Inc. v. Teri Welles, 60 F. Supp. (S.D. Cal. 1999) case the court ordered an expert to create a "mirror image" of the opposing parties hard drives to prevent any further destruction of electronic data.  This type of computer action would provide you with a copy of the opposing parties hard drive which could then be searched for deleted or altered files.  These can be restored under certain circumstances.  Objections as to privilege can be met by having opposing partie’s counsel review the mirrored hard drives and then having the court review the information as to of privilege claims.

It is also necessary to consider whether “metadata” or “hidden data” is important for discovery purposes.  For example, in e-mails metadata can show you if someone was blind copied on a particular e-mail.  This metadata information is generally not available if disclosure of electronic information is converted to paper, tiff image or PDF file.  You should also consider the need to obtain the original electronic files for review even if the electronic data is disclosed in a paper format.

The location of the information also is important.  For example, the opposing party may have the data stored on Palm Pilots, home computers, laptops or backup tapes that are stored off the premises.  All of the sources need to be checked by counsel when requesting electronic information.  Be aware also that electronic information is generally unstructured and may be found in different directories on a computer system.  Pertinent word processing documents, e-mail and other electronic information may not be stored in a structured format. This is to be contrasted with paper documents that are generally contained within folders that are filed in filing cabinets.

Another issue is whether it would be advantageous to have your computer information technology expert meet with the opposing counsel's technology expert to work out some of the issues involved with electronic discovery.  For example, they may exchange information about operating systems, numbers of computers, application software, backup and retention policies, etc.

Traditionally, parties have had to pay for their own discovery costs. However, where there is an undue burden or expense imposed on the producing party, courts may order the discovering party to pay the costs. See Fed. R.  Civ. P. 26(c) (permitting the producing party to challenge the discovery request as unduly burdensome or costly). In Southern Ute Indian Tribe v. Amoco Prod. Co., 2 F.3d 1023, 1029-30 (10th Cir. 1993) the court held that "the presumption is that the responding party must bear the expense of complying with discovery requests". See also, Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985)  and In re Brand Name Prescription Drugs Antitrust Litigation, 1995 WL 360526 (N.D. Ill. June 15, 1995). 

Procedural Rules

One of the more important judicial management tools for insuring electronic discovery is Rule 16 (c) that the court can use to assist in computer-based discovery for both parties.  Under this rule the parties can have the court set appropriate timelines and resolve other discovery issues to facilitate electronic discovery.  For example, the parties can discuss whether or not they will use litigation support databases to organize and store their documents and other discovery material.  Also the court the parties can discuss formats for document exchange, an attorney client waiver agreement, disclosure costs, trade secret privileges, and other issues relating to electronic information disclosure or production.

The primary disclosure procedural rule under the Federal Rules of Civil Procedure is Rule 26(a)(1)(B).  Under this rule the parties are required to disclose “ . . . all documents, data compilations and tangible things" to the other party without the necessity of a discovery request.  This pertains to any matter, not privileged, that "the disclosing party may use to support its claims or defenses. .”

Rule 30(b)(6), F.R.Civ.P. can be used to depose the  opposing parties person who is the qualified to testify regarding the opponent's computer networks, information systems, messaging systems, archiving policies, and backup data.

Rule 34(a) of F.R.C.P. states: (a) Scope. Any party may serve on any other party a request (1) to produce . . . to inspect and copy, any designated documents . . . and other data compilations from which information can be obtained . . . or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b). . .; or (2) to permit entry upon designated land or other property . . . inspection . . . testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).  Some courts have used this rule to authorize the “mirroring of hard drives”  or searches on a party’s computer systems. 

Also, be aware that the court under Rule 53 of the Federal Rules of Civil Procedure has the power to appoint a neutral expert to act as a special master or as an expert in computer-based discovery if the need arises.

Responding to an Electronic Discovery Request

You will undoubtedly be served with a request for discovery of electronic  information or will have to provide such information under mandatory disclosure rules.  As an attorney you have to an obligation to investigate your client information management systems to locate information discoverable pursuant to discovery rules.  In some instances your client information systems may be arcane and disorganized.   However, you still have an obligation to seek out this electronic information from your client.  This does not mean that you will simply ask your client a few questions and receive a few relevant files relying upon his understanding of his computer systems and files to provide the relevant information.  In fact, in  Linnen v. A.H. Robbins Co., 1999 Mass. Super. LEXIS 240., the defense attorneys themselves faced sanctions for failing to completely investigate their client's stored computer backup tapes, while representing to the court that all relevant computer files had been produced.

Duty to Preserve.

Is important to realize that your client has a duty to preserve electronic information that is discoverable in a case.  In fact, the courts have held that if litigation was reasonably anticipated or if your client was put on notice of litigation that preservation of electronic information should begin immediately. In Gates Rubber Co. v. Bando Chemical Industries, Ltd., 167 F.R.D. 90 (D.Colo. 1996) the court noted that the prevailing consensus of courts is that sanctions are appropriate when a party (1) destroys (2) discoverable matter (3) which the party knew or should have known (4) was relevant to pending, imminent, or reasonably foreseeable litigation.  J. Gorelick et al., Destruction of Evidence, Section 3.8, p. 88 (Wiley 1989). In  Mathias vs. Jacobs, 197 F.R.D. 29 (S.D. N.Y. 2000) the court held that it is well settled that a district court has the authority to impose sanctions for the destruction of evidence.  As noted above failure to preserve electronic information can result in a spoliation instruction, fines and/or cost against counsel or the party, or default judgment against the party.

Practical Considerations in Responding

There are several practical considerations when responding to a request for electronic discovery.  One of the first issues is whether the discovery request is overbroad.  As noted above the courts are not inclined to allow for unfettered fishing expeditions into electronic information.  Therefore if you receive a request that is arguably overbroad than you should immediately negotiate compliance with the opposing counsel.  This will allow for less costly disclosure of the electronic information since the cost of disclosure generally falls on the shoulders of each party.  However, under some circumstances if the electronic information involves legacy data produced from earlier hardware models and software applications the cost to disclose such information in an electronic or paper format may be substantial.  It would be in your best interest to attempt to negotiate the cost issues with opposing counsel prior to asking for the court to intervene in resolving this dispute.  Though the court has the power to shift cost under the rules of discovery the court may be inclined to impose the cost on the party who created the data since they should have expected that this information would be needed in the future in a readable format.

Finally, it will be necessary to screen the information for privilege and also relevance depending upon the circumstances of your case.  This can be quite costly.  One alternative to screening the information is to enter into an agreement with opposing counsel that any information such as attorney client privilege information would not be waived even though inadvertently disclosed to the opposing party

Always be aware that as a producing party you have the same objections against discovery of your electronic files as you would have against discovery of your paper files.  Thus, under Rule 26(b)(2) of the Federal Rules of Civil Procedure, the court can limit discovery if the discovery is "unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or . . the burden or expense of the proposed discovery outweighs its likely benefit".