The Federal Courts adopted
amendments to the Federal Rules of Civil Procedure in 2006. Among the reasons for adoption of the Federal Amendments was
that “[w]ithout national rules adequate to address the issues raised by
electronic discovery, a patchwork of rules and requirements is likely to
develop. See Report of May 27, 2005, as revised July 25, 2005 (the
“Advisory Committee Report), at 23, available at http://www.uscourts.gov/rules/Reports/ST09-2005.pdf. Yet, while the Federal Rules approach to
ediscovery does provide guidance, there remains a patchwork of requirements and
in many cases an absence of requirements at the state level. As of September
2009, 23 states have enacted state ediscovery rules. ( Alaska, Arizona,
California, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan,
Minnesota, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, North
Dakota, Ohio, Tennessee, Texas, Utah and Virginia. See, Allman, Thomas Y., State
E-Discovery Rulemaking after the 2006 Federal Amendments: An Update (as of
September 2, 2009) Available at http://www.ediscoverylaw.com/uploads/file/State%20Rulemaking%20-%20Allman.pdf.
Each of those states takes a slightly different approach; some follow the
Federal Rules almost verbatim and others, like California, follow the federal
structure but in quite different terms.
There have also been attempts to
develop uniform rules for ediscovery. In August of 2007, the National
Conference of Commissioners of Uniform State Laws ("NCCUSL"), best
known as the author of the Uniform Commercial Code, approved the Uniform Rules
Relating to the Discovery of Electronically Available information. Available
at http://www.law.upenn.edu/bll/archives/ulc/udoera/2007_final.htm. The
result is that there are federal rules, various state rules, court guidelines
and proposed uniform rules. Thus in practice, there is a patchwork which
is further complicated by the presence of many specific local rules. In
those states which lack explicit electronic discovery rules, attorneys are
often left searching for guidance because so few discovery issues become the
subject of printed appellate decisions. Attorneys who become familiar
with the federal rules are often perplexed about how to approach ediscovery in
the state trial courts. This article will provide some practical
suggestions for handling ediscovery at the state level, particularly in those
jurisdictions where rules are absent. In essence it will conclude that
the procedures which have become best practices at the federal level follow
logically from the nature of the evidence itself, and the principles apply to
all electronic discovery at the federal and state level.
Identifying Electronically Stored
information (“ESI”). ESI is
essentially any information created or stored in digital form. Some state
rules, such as those in California, provide specific definitions, but as a
general way to identify ESI, anything that is on a computer, or storage drive,
or cell phone, or hard drive, or an mp3 player for example is ESI. ESI
presents unique challenges for several reasons: it is dynamic (constantly
changing), voluminous, requires special software and tools to render it
meaningful, and ESI contains metadata (data about the data).
The first challenge for the attorney
is identifying the locations of the ESI, and determining if there are any
special challenges with respect to their evidence. Is it so voluminous
that some tool is required to cull the volume? Is it in a form, such as backup
tapes, that may be difficult and costly to process? Is there metadata
that is relevant to this case that may need to be preserved? The attorney
will find it useful to interview the client, communicate with the IT staff, and
possibly to retain an outside ediscovery expert to prepare a data map.
Communicate with Opposing Counsel. The Federal Rules take an approach that attorneys
should “meet and confer” to discuss the handling of ESI. Not all states
specifically require “meet and confer” with respect to ESI, and many states do
not include a formal “meet and confer” for discovery generally. Attorneys
need to check the specific requirements of the local rules. Regardless of
the specific requirements resolution of a few questions between opposing
counsel early in the litigation will potentially keep the ediscovery process
and costs under control. These issues are reaching agreement on the form
of production and handling inadvertent production of privileged or confidential
information.
Form of production refers to whether
the discovery will be made in the form of native files, quasi-paper– such as
Tiff images, or paper form. This can make a big difference in the ease
and cost of review. If an attorney wants to review in Concordance or
Summation, the attorney will probably prefer Concordance or Summation load
files, or at least to get the information in some electronic format. Each
attorney needs to understand the implications of the format for his or her
case, and both parties need to be clear that each understands the other’s
expectations. These simple decisions, when made at the beginning of a
case, can be instrumental in keeping discovery manageable.
Handling inadvertent production
comes from the sheer volume of documents. When there is a high volume
case, much of the culling and first round of document elimination needs to be
automated. Sometimes, even when great care is taken, documents slip
through. It’s important to understand the state rules regarding quick
peek, claw back or other methods that might allow some protection in the event
of inadvertent production. Many issues can be avoided by counsel
agreeing, within the discovery rules applicable in their state, to a procedure
for handling inadvertent production.
Consider Witnesses and Witness
Preparation for Document Production.
One aspect of ediscovery cases that has led to many spoliation claims is a poor
showing by a 30(b) (6) witness testifying about the document production.
Even where state rules do not specifically provide for an electronic discovery
witness, there will still be provision for a “keeper of records” or “person
most knowledgeable” witness. Consider while collecting the documents who
from the company, or if necessary which consultant, can best speak to the process.
When deposing the opposition witness, take the time to prepare with an IT
person or consultant to get the best understanding of the electronic record
preservation process.
Preservation of Evidence. Once litigation is reasonably anticipated, often with
the filing of a complaint, parties have an obligation to preserve
evidence. Usually counsel identifies potential custodians and sends a
litigation hold letter. Sometimes, and often advisably, key information
is collected at the outset as collection can be the best method of
preservation. Counsel also needs to be aware of document retention and
destruction policies that a client may have, and to suspend the operation of
those policies for the duration of the litigation if necessary to preserve evidence.
Cost Shifting. In those instances where ESI is deemed “inaccessible”
the cases have allowed for some shifting of the cost of locating, collecting
and processing the documents. The standards actually vary some from state
to state. The most frequently cited precedent is of the Zubulake
cases.
In Zubulake v. UBS Warburg LLC,
217 F.R.D. 309, 317-18 (S.D.N.Y. 2003) (Zubulake I), Judge Scheindlin suggested
a seven-factor test for determining whether cost-shifting should occur:
(1) The extent to which the request
is specifically tailored to discover relevant information;
(2) The availability of such
information from other sources;
(3) The total cost of production
compared to the amount in controversy;
(4) The total cost of production
compared to the resources available to each party;
(5) The relative ability of each
party to control costs and its incentive to do so;
(6) The importance of the issue at
stake in the litigation and;
(7) The relative benefits to the
parties of obtaining the information.
These are very fact specific and in
Zubulake III, Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003)
Judge Scheindlin applied these factors to the facts in that case. After
there had first been a sampling of some of the backup tapes to determine their
relevance, the defendant had asserted that plaintiff should pay for restoration
of the backup tapes. The court ruled, under the circumstances of the
case, that defendant should pay 75% and plaintiff 25% of the cost of
restoration.
Electronic Discovery Reference Model
(“EDRM”) Best Practices.
Ultimately, the need to address ediscovery according to its unique requirements
arises from the very nature of the digital information itself. The EDRM available
at http://www.edrm.net
attempts to lay out a process for the handling of ESI. The
recommendations of the EDRM model are meant as an analytical framework for
conducting ediscovery. While they were developed within the context of
the federal rules, that framework stands as a reference for how to approach
ediscovery regardless of specific court rules.
The basic framework is to start with
good information management, have good document retention policies and follow
them. Then identify the information needed in the context of the
particular case. Preserve the information so that it is not lost or
damaged, not spoliated in any way. Collect the information so that it can
be processed and used; this may involve forensic collection methods. Process
the information to reduce it in volume and convert it into formats for
review. Review for relevance and privilege. Analyze the data for context
and content. Produce it in an appropriate form using an appropriate
delivery method, and finally present the evidence as needed at trial.
Sanctions. One of the big concerns in ediscovery cases is the
imposition of sanctions. Every state has rules regarding the obligation
to preserve evidence. In the absence of specific ediscovery rules, a
court will look to its general discovery rules regarding preservation and
spoliation when evaluating sanctions.
Resources. There are a number of resources available for
assistance with an ediscovery issue. At http://www.applieddiscovery.com/ws_display.asp?filter=State%20Courts
is a list of the status of ediscovery rules in every state, including whether
the state has no specific rules. At http://www.ediscoverylaw.com/articles/resources/ is a
list of local federal court rules for every Federal District Court. At http://www.ediscoverylaw.com/articles/ediscovery-case-database/
is a regularly updated database for discovery cases. Also useful at the
state court level are the previously cited proposed Uniform Rules and the Conference of Chief Justices Guidelines For
State Trial Courts
Regarding Discovery of Electronically-Stored Information available at http://www.ncsconline.org/images/EDiscCCJGuidelinesFinal.pdf. Another excellent resource for best practices is the
Sedona Conference web site http://www.thesedonaconference.org/.
Conclusion. Since slightly fewer than half of the states
have explicit rules for handling electronic discovery, and since each state has
slightly different rules, counsel are often challenged by questions regarding
the handling of ESI at the state court level. Although the federal rules
were partially intended to avoid this patchwork of rules, they do not apply in
every state. However, the Federal
Rules and the best practices that have been devised to deal with them, such as
the EDRM, address the physical realities of ESI, its dynamic nature, volume,
need for special tools and meta data. Even in the states where guidance
is lacking, best practices like the EDRM provide a significant degree of
guidance.
*Sheryl Katz, Esq., EnCE, is based
on Los Angeles, California where she works for eClaris, Inc., an e-discovery
and computer forensic consultancy and service provider dedicated to helping law
firms and corporations classify process and review electronically stored
data. She can be reached at 213.784.4142, slkatz@eclaris.com
or through www.eclaris.com.
NB: This article is scheduled to appear in the upcomming issue of
the Women's
Law Journal which is put out by the National Association of Women Lawyers.
