Published Articles & News E-Data For the
Rest of Us: Getting What You Need to Win
By Robert
K. Jenner
Originally delivered in Toronto, July 26, 2005. ATLA's National
College of Advocacy.
So you have a basic
personal injury practice – auto and trucking cases, slip and fall, maybe
some medical malpractice cases – certainly you don’t need to be concerned
about electronic discovery, right? Wro ng.
If you’re not getting the electronic evidence
from defendants in many of your cases, you’re missing critical evidence
that can make or break your chances of success. Although some lawyers may
fall into the trap of practicing cookie-cutter law, it is important that all lawyers
step aside from traditional approaches, and see what evidence is available in
electronic format that has not been available before. Indeed, as businesses
become increasingly “paperless,” there is often more critical information
to discover in a defendant’s computer than there is in its filing cabinet. By
failing to get electronic discovery, you may be setting yourself up for malpractice. Discovering
electronic evidence is easier today than it has been in the past. But is
electronic information legally discoverable? As electronic evidence is really
nothing more than the data that resides on our computers, such as word processing
documents, e-mail, spreadsheets, and databases, there really should be nothing
mysteriously prohibitive about obtaining computer images of the data. Consider
the broad language of Federal Rule of Civil Procedure 34, which allows production
that would encompass most electronic media. As one court noted, “Today
it is black-letter law that computerized data is discoverable if relevant.”
Although the rules allow parties to specify production format for e-documents,
the rules do not direct counsel to pick one production format over another. When
a production format is not specified, a responding party should produce documents
in the format in which the information is “ordinarily maintained”
or in an electronically searchable form. Why not just
print out the data and avoid all the dispute? There are many reasons you
would want the data in its original form. First, the practical answer of
the volume of materials is paramount. You can have an entire warehouse full
of materials loaded on one hard-drive. Second, material in its “native”
format can be searched by keywords (more on text searching, below). Third,
data in its native form can be manipulated. So, for example, if you have
a table or chart in a database form, that data can be rearranged and analyzed
in many different formats. (If the defendant’s experts can manipulate the
data that way, so should your experts). Finally, there may be multiple versions
of a document available, and not just the final version. This may be important
if changes have been made to a document that become critical in formulating a
paper-trail. Federal Rule 26(a)(1)(B) specifically requires
the disclosure of "data compilations" (for example, electronic files,
databases, and e-mails) after a full investigation of the case. This imposes a
duty on attorneys to identify all sources and locations of electronic data in
their clients' possession. In that context, what do you need to do to begin
obtaining the defendant’s e-data. TOP Preservation
Order The first thing you need to consider is whether
you need a preservation order to prevent the defendant from destroying back up
tapes. Almost all businesses back up electronic data regularly—even
daily. Back ups can be made on tapes, separate hard drives, and even at off-site
facilities. Often, the tapes are “recycled” as old newer information
gets recorded over older information. Depending on the preservation policy
of the defendant, you may need to petition the court immediately upon filing suit
to make sure that all data is retained and old data is not destroyed as new data
is recorded on old tapes. You should write the defendant
a letter advising that the defendant should not destroy or delete any data for
any reason. This evidence-preservation letter is a common way to protect
against the loss of electronic information. In such a letter, sent to the company
or its counsel, you request that the opposing party not destroy or modify any
documents, software, logs, e-mail, and so forth that are currently on that company’s
computers. You further request that the company take affirmative steps to
preserve evidence. The letter should specifically request that the company put
its document-retention policy—a euphemism for document-destruction policy—on
hold. To do otherwise would be considered spoliation of evidence. TOP Learning
Where To Look – The Information Technology Deposition and Beyond In
order to determine what the defendant’s e-preservation policy is, and to
determine exactly what data exists in the first place, you should strongly consider
deposing the defendant’s Management Information System (MIS) person right
away. You can do so through a 30(b)(6) deposition asking the defendant to
produce a witness with knowledge about databases, information storage, information
destruction, back-up systems, and the like. If you have already had the court
enter a preservation order, you can determine at the deposition whether the company
has taken steps to implement the order. If you learn that the order is being
violated such that information has been or is continuing to be destroyed, immediate
court intervention is required. During this deposition,
you not only need to determine what information is available, and how it is retained,
but also how it is stored. You should strongly consider consulting with a
forensic computer expert to help you formulate the questions and areas of inquiry. Some
useful questions may start with identifying the back-up e-data management policies
– were any in place? What operating system is in use? Has the
program that stored the data changed? Are there hard-copy print-outs of any
of the data, if the defendant claims that the e-data is no longer available? Are
only the PCs on the system backed-up? Often the “vice-president”
of something-or-other, presented as a corporate designee to discuss data production,
is often less knowledgeable about the system that the actual data-entry person. Thus,
it is important to identify who had access to the database systems in the ordinary
course of business. What about portable laptops? Voice mail may also
be stored, and PDAs (Palm platform type devices) may also have information. Following
the deposition, you should create specific interrogatories and request for productions
strategically targeted and specifically crafted to get the information that you
want. Review these requests with your expert to ensure that your terminology
is accurate. A request for "all electronic data" will likely result
in an objection based on burden or expense, and courts have been inconsistent
on how deeply they will allow a discovering party to dig. Therefore, discovery
requests must be specific and exhibit an understanding of how electronic data
is created, stored, and destroyed. The particular type
of electronic data you need to obtain will differ depending on the type of case,
nature of the defendant, etc. However, in determining what you should request,
you should consider the following categories of electronic data when developing
your requests for production: - e-mail (sent, received,
or drafted) and corresponding dates, times, recipients, and file attachments
-
word-processing files
- tables, charts, graphs, and
database files
- electronic calendars
-
proprietary software files
Once the documents
are obtained, you should turn them over to your forensic electronic data expert. He
may be able to create a program for you to help select the pertinent documents
and data you want without your having to pain-stakingly look through potentially
millions of files. E-data is easily searched and sorted with the correct
tools. Word search recognition programs can identify text words and terms
through the mountain of e-data on the disk before you. Once
the data is retrieved, you can store the data on your own document storage programs
that can help you store and sort data by issues, senders, recipients, dates, and
other criteria. TOP E-mail:
A Treasure of Possibilities E-mail is a vital source
of communication in virtually every business. In many instances, E-mail communications
provide candid, if not incriminating, discussions amongst employees. Also, simply
because E-mail is deleted from a person’s hard drive, doesn’t mean
that it’s not available for discovery. In many instances, E-mail communications
provide candid, if not incriminating, discussions amongst employees. Discovery
of E-mail, therefore, should be high on the priority list. For
example, in Linnen v. A.H. Robins Co., the family of a woman who died after taking
the diet pill fen-phen sued the drugs' makers. The plaintiffs claimed the drugs,
taken in combination, caused the woman to develop a deadly lung disorder.[1b]
Computer forensic engineers hired by the plaintiffs were able to recover an e-mail
from one A.H. Robins employee to another that read: "Do I have to look forward
to spending my waning years writing checks to fat people worried about a silly
lung problem?" Shortly after this revelation, the case settled. TOP Motions
to Compel Surprising as this may come to some plaintiffs’
lawyers, the defendants do not always give over e-data willingly. There are a
number of hurdles to a defendant’s capacity to produce e-data. First, it
may be difficult, time-consuming, and/or expensive for the defendant to segregate
relevant from non-relevant or privileged from non-privileged information when
it is stored in electronic format. For example, parties are often required to
search back-up tapes, but such tapes are generally designed only for disaster
recovery, not for retention and data retrieval. The cost and burden of reconstructing,
restoring, and searching data on such tapes, therefore, can be enormous.
Second, the operating systems for both the producing and the discovering party
may be incompatible. A further potential problem relates to "hidden"
evidence. There may be more relevant information stored digitally than normally
would exist in an all-paper environment. Deleted information may be stored unintentionally
in backup files. However, the deleted data may not be stored indefinitely: information
of this sort may be overwritten by the normal operation of the computer - once
hard-drive space has been exhausted, the computer begins to write over old non-saved
information bit by bit. Solutions to this problem - to suspend business activity
in order to preserve this information, an extremely costly solution for the producing
party, or to preserve every document of the company, which could lead to a system
crash - are imperfect at best. There
are several cases that address the cost burden in e-discovery. It is not the intent
of this paper to go through an exhaustive analysis, as the law is constantly changing,
and the subject matter is voluminous and often cases specific.
However, any discussion of this topic must start with a reviewing of Judge Shira
Sheindlin’s compelling analysis in Zubulake v. UBS Warburg, 217 F.R.D. 309
(S.D.N.Y. 2003) . In a sex discrimination case against a financial services company,
the plaintiff requested e-mail beyond the approximately 100 pages produced by
the defendants. She presented substantial evidence that more responsive e-mail
existed, mostly likely on backup tapes and optical storage media. The defendants
objected to the production, which they estimated would cost $175,000. The judge
held that the plaintiffs were requesting relevant information, but the issue of
payment became central. The court held that for data kept in an accessible format,
the usual rules of discovery apply. The responding party should pay the costs
of producing responsive data. A court should consider cost shifting only when
electronic data are relatively inaccessible, such as on backup tapes.
In its analysis, the court rejected the previously
used factors set forth in Rowe v. William Morris Agency, Inc., 51 Fed R. Serv.
3d (West) 1106; aff’d, 53 Fed. R. Serv. 3d (West) 296 (S.D.N.Y. 2002).
In Zubulake, Judge Sheindlin developed a seven factor test, which, in order of
importance or weight, were: - The extent to which
the request is tailored to discovery relevant data;
-
The availability of those data from other sources;
-
The total cost of production, relative to the amount in controversy;
-
The total cost of production, relative to the resources available to each party;
-
The relative ability and incentive for each party to control its own costs;
-
The importance of the issues at stake in the litigation; and,
-
The relative benefits to the parties in obtaining those data.
The
court in Zubulake stressed that the factors do not constitute a “check-list.”
In determining undue burden warranting cost-shifting, the first two factors are
most important because they establish the marginal utility of the information
sought. The next three factors are second in importance because they show how
relatively expensive the production will be. The sixth factor is next to the least
important. And the final factor is the least significant because, typically, the
request for production benefits only the requesting party. Id. at 323. TOP Conclusion As
the Court recognized in Linnen, companies avail themselves of technology to run
their businesses. “To permit a corporation . . . to reap the business benefits
of such technology and simultaneously use that technology as a shield in litigation
would lead to incongruous and unfair results.” Id. at *17. Certainly, courts
must be mindful to ensure that no party is put to an exorbitant burden, financially
or otherwise. Yet, fair discovery and disclosure of e-data is here to stay. Plaintiff
lawyers must aggressively pursue such discovery in order to ensure that no stone
is left unturned for an aggrieved plaintiff.
See Anti-Monopoly, Inc. v. Hasbro, Inc., 94CIV.2120 (LMM) (AJP), 1995 WL 649934,
at *2 (S.D.N.Y 1995).
[1b] Linnen v. A.H. Robins, Inc., v. A.H. Robins Co.,
Inc., 10 Mass L. Rep., 189, 1999 Mass. Super LEXIS 240 (June 16, 1999).
[2]
See Kozlowski, PPA v. Sears, Roebuck & Co., 73 F.R.D. 73, 75-76 (D. Mass.
1976)(justifying default judgment for failure to produce documents, in part, because
“no evidence ha[d] been produced tending to establish the truth” of
defendant’s attorney’s claim that defendant’s indexing system
made compliance with plaintiff’s discovery requests a “Herculean”
task).
[3] http://cyber.law.harvard.edu/digitaldiscovery/digdisc_library_4.html
[4] See, for example, Annual Survey of Electronic Discovery Law, 10 Rich.
J. L. & Tech. 49 (Spring 2004); Withers, Annotated Case Law and Further Reading
on Electronic Discovery (August 1, 2004). Also, for excellent resources on electronic
discovery information, go to http://www.fjc.gov/ and http://www.krollontrack.com.
[5] See also Daewoo Electronics Co. v. United States, 650 F. Supp. 1003, 1006
(Ct. Int’l Trade 1986)(“It would be a dangerous development in the
law if new techniques for easing the use of information became a hindrance to
discovery...The normal and reasonable translation of electronic data into a form
usable by the discovering party should be the ordinary and foreseeable burden
of a respondent in the absence of a showing of extraordinary hardship.”)
[6] The seven Rowe factors are: (1) The specificity of the discovery requests;
(2) The likelihood of discovering critical information; (3) The availability of
such information from other sources; (4) The purposes for which the responding
party maintains the requested data; (5) The relative benefit to the parties of
obtaining the information; (6) The total cost associated with production; (7)
The relative ability of each party to control costs and its incentive to do so;
and The resources available to each party. TOP
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