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Seeing E-discovery Through New Eyes
Law Technology News
A century ago, French novelist Marcel Proust wrote: "The only true voyage of discovery … would be not to visit strange lands but to possess other eyes, to behold the universe through the eyes of another, of a hundred others, to behold the hundred universes that each of them beholds, that each of them is."
Proust's was an era of miraculous new technologies — electric lights, cars, telephones, airplanes, movies. These strange inventions first bewildered and intimidated, then extended humans' reach and let us bear witness to a larger world. We integrated those technologies into our lives and now confidently reach for a switch, a phone, or the steering wheel because we know what those things do and how to use them.
Today, thanks to computing, the internet, and social networking, we daily behold the hundred universes that others behold. Today's lawyers, judges, and others in the judicial process need new eyes for a new century.
Digital is Different. We need new eyes that see beyond our strained, vain search for documents, those pat, little packages of information we envision neatly bundled for printing and review. We need new eyes to see that this century's case-making information will be data, not documents: geolocation data; databases; Big Data; metadata. Digital activities and devices now record where people go, when, and with whom. One day, users will routinely capture all they see and hear using nascent technologies such as Google Glass. It will happen faster than we can debate privacy concerns, and the enormous (and enormously probative) digital record won't look a bit like a document.
We need new eyes to look beyond documents and see data.
More, to enable our new eyes to see and efficiently discover data, we need new contextual information rarely required in paper discovery. There is an aspect to electronically stored information — a penumbra of information — that doesn't go to the substance of claims or defenses in litigation, but which bears mightily on the integrity and utility of the evidence. It is application and system metadata. In the digital era, metadata are as important as dates, page numbers, and circulation lists were in the paper era.
We need new eyes and new contexts to discover today's digital evidence.
The True Voyage of E-Discovery. When the public discovered that the U.S. National Security Agency routinely trolled through phone records, Marc Rotenberg, executive director of the Electronic Privacy Information Center, noted, "American laws and American policy view the content of communications as the most private and the most valuable, but that is backwards today.
"The information associated with communications today is often more significant than the communication itself." He was talking about metadata.
Consider an email that says, "OK." That two-letter message — just 14 bits of ASCII-encoded text — climbs aboard the Internet Express toting a big satchel of metadata, then picks up considerably more as it roars through networks and servers to its recipient. The who, when, where, and how of the message's metadata comprise far more information than the what of its content.
The call data gathered by the NSA may not hold the words spoken, but the metadata about numbers called, number called from, and the time and location of attempts speaks volumes and is, as Rotenberg put it, "often more significant than the communication itself." It's evidence; government grabs and uses it.
Yet, metadata has enormous utility apart from its innate value as evidence. Metadata enables us to organize, manage, and make sense of digital evidence. Metadata is the "glue" that holds much data together. It's the labels on the cans that keep us from grabbing dog food when we want soup. Metadata is the digital counterpart of the evidence bag, the date on the evidence label, or the entry in the police property room log that lets us find evidence and assure its integrity.
Say what one might about privacy and governmental intrusion, there should be no debate that metadata is powerfully important information. Unfortunately, another arm of government, the Judicial Conference of the United States' Standing Committee on Rules of Practice and Procedure, isn't giving metadata its due.
Transparency Fosters Efficiency. One way to rein in costs of electronic data discovery is narrowing the scope of discovery. Under existing Federal Rule of Civil Procedure 26(b), parties "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense —including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter."
The proposed rules amendments wending their way through the public comment process would eliminate all of the language after "claim or defense." The language to be struck defines meta-information as relevant.
If you support the proposed amendment or not, you should be concerned that it makes no provision for discovery of metadata or for discovery about information systems. Such efforts are not always easy to characterize as "relevant to any party's claim or defense." Yet, discovery of metadata and information systems is often essential.
Poor information governance, plus a shortfall in competence and cooperation, prompt requests for production that are impossibly overbroad in e-discovery, though such requests might once have been tolerated in discovery of paper records. Requesting parties must fashion more precise requests. But, precision requires information. Precise requests aren't fostered by less transparency into a producing party's systems, forms, and metadata — information that enables, and thus obligates, requesting parties to exercise restraint and accuracy. It's hard to aim in the dark.
Reasonable Discovery About Discovery Needs Protection. The proposed amendment seeks to restrict discovery to matters "relevant to any party's claim or defense" at a moment in history when we most need to probe where and how such information can be found in an efficient, effective, and affordable manner. It's easy to disparage this as "discovery about discovery," however, measured and managed meta-discovery about ESI is necessary to rein in overbroad discovery and end the guessing games. Asking IT about how and where they store data may not be "relevant to a party's claim or defense," but it's highly relevant to a just, speedy, and inexpensive process.
Accordingly, discovery of metadata supporting the utility and integrity of ESI warrants discrete recognition in the rules, though such data may not directly relate to claims or defenses. The Advisory Committee should make clear in the Committee Notes that they do not seek to limit the discovery of meta-information that is either a part of ESI or which materially bears on its integrity or utility. A narrowed scope of discovery is wisely coupled with a broadened access to metadata.
Proposed Changes to Rule 30 Shouldn't Limit Meta-Discovery. Many parties refuse to voluntarily disclose essential meta-information unless compelled to do so through discovery. A proposed amendment to FRCP Rule 30 would halve to five the number of depositions that may be taken without leave of court and limit each deposition to six hours.
A party shouldn't have to choose between merits discovery and meta-discovery, or seek leave of court to secure information essential to their ability to fashion precise requests. Accordingly, the caps proposed for Rule 30 should not apply to meta-discovery, such as depositions of IT personnel who are oblivious to claims and defenses but know the ESI. We should trust counsel not to abuse discovery of meta-information. Should that trust prove unfounded, judges wield considerable power to rectify abuses.
Be Heard. The proposed amendments have much to commend them, and the committee that drafted them deserves our thanks for fine work. They need our input as well. Urge them to protect the transparency of meta-information because it will soon be the most important information out there.
And remember, you don't afford transparency because you want to help the other side. You do it to be free to confine your efforts to sensible sources explored in sensible ways.
Austin-based attorney Craig Ball (firstname.lastname@example.org) serves as an ESI Special Master and computer forensic examiner.
This article originally apeared in Law Technology News.