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Discovery of electronic data compilations has been part of American litigation for two generations, during which time we’ve seen nearly all forms of data migrate to the digital realm. Statisticians posit that only 5 to 7 percent of all information is “born” outside of a computer, and very little ever finds its way to paper. Despite the central role of electronic information in our lives, electronic data discovery efforts are either overlooked altogether or pursued in such epic proportions that discovery dethrones the merits as the focal point of the case. At each extreme, lawyers must bear some responsibility for failure. Few of us have devoted sufficient effort to learn the technology, instead deluding ourselves that we can serve clients by focusing on the smallest, stalest fraction of evidence: paper documents. When we do garner a little knowledge, we abuse it like the Sorcerer’s Apprentice, demanding production of “any and all” electronic data and insisting on preservation efforts sustainable only through operational paralysis. We didn’t know how good we had it when discovery meant only paper. However, EDD isn’t going away. It’s growing exponentially, and some items — databases, spreadsheets, voicemail and video — bear increasingly less resemblance to paper. Proposed changes in the rules of procedure will require lawyers to discuss ways to preserve electronic evidence, select formats in which to produce it and manage volumes of information dwarfing the Library of Congress. Litigators must learn it or find a new line of work. My goal for this column is to help make EDD and computer forensics a little easier to understand, never forgetting that this is exciting, challenging — and very cool –stuff. ACCESSIBLE VERSUS INACCESSIBLE You can’t talk about EDD today without using the “Z” word: Zubulake (pronounced “zoo-boo-lake”). Judge Shira Scheindlin’s opinions in Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309 (S.D.N.Y. 2003) triggered a whirlwind of discussion. Scheindlin cited the “accessibility” of data as the threshold for determining issues of what must be produced and who must bear the cost of production. Accessible data must be preserved, processed and produced at the producing party’s cost, while inaccessible data is available for good cause and may trigger cost shifting. But what makes data “inaccessible?” Is it a function of the effort and cost required to make sense of the data? If so, do the boundaries shift with the skill and resources of the producing party such that ignorance is rewarded and knowledge penalized? To understand when data is truly inaccessible requires a brief look at the DNA of data. EVERYTHING’S ACCESSIBLE Computer data is simply a sequence of ones and zeroes. Data is only truly inaccessible when you can’t read the ones and zeroes or figure out where the sequence starts. To better grasp this, imagine you had the unenviable responsibility of typing the complete works of Shakespeare on a machine with only two keys, “A” and “B,” and if you fail, all the great works of the Bard would be forever lost. As you ponder this seemingly impossible task, you’d figure out that you could encode the alphabet using sequences of As and Bs to represent each of the 26 capital letters, their lower case counterparts, punctuation and spaces. Cumbersome, but feasible. Armed with the code and knowing where the sequence begins, a reader can painstakingly reconstruct every lovely foot of iambic pentameter. This is just what a computer does when it stores data in ones and zeroes, except computers encode many “alphabets” and work with sequences billions of characters long. Computer data is only “gone” when the media that stores it is obliterated, overwritten or strongly encrypted without a key. This is true for all digital media, including back up tapes and hard drives. But, inaccessibility due to damage, overwriting or encryption is rarely raised as grounds for limiting e-discovery or shifting costs. ANOTHER WORD FOR BURDENSOME Frequently, lawyers will couch a claim of undue burden in terms of inaccessibility, arguing that it’s too time-consuming or costly to restore the data. But, burden and inaccessibility are opposite sides of the same coin, and “inaccessibility” adds nothing to the mix but confusion. Arguing both burden and inaccessibility is two bites at the apple. Worse, there is a risk in branding particular media as “inaccessible.” Parties resisting discovery shouldn’t be relieved of the obligation to demonstrate undue burden simply because evidence resides on a back up tape. We must be vigilant to avoid a reflexive calculus like: All back up tapes are inaccessible. Inaccessible means undue burden is presumed. Ergo, good cause must be shown before access to back up tapes is granted and, if granted, the requesting party must bear the cost of converting data from “inaccessible” to “accessible” form. Zubulake put EDD on every litigator’s and corporate counsel’s radar screen and proved invaluable as a provocateur of long-overdue debate about electronic discovery. Still, its accessibility analysis is not a helpful touchstone, especially in a fast-moving field like computing. Codifying it in proposed amendments to F.R.C.P. Rule 26(b)(2) would perpetuate a flawed standard. Even if that occurs, don’t be cowed by the label, “inaccessible,” and don’t shy away from seeking discovery of relevant media just because it’s cited as an example of something inaccessible. Instead, require the producing party to either show that the ones and zeroes can’t be accessed or demonstrate that production entails an undue burden. Craig Ball, a member of the Law Technology News Editorial Advisory Board, is a litigator and trial technology consultant based in Montgomery, Texas. This article originally appeared as his April “Ball in Your Court” column for the magazine.

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