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In the fast-developing area of e-discovery, we didn’t have long to wait for our first digital rummage request. In Etzion v. Etzion, [FOOTNOTE 1] the plaintiff and her computer forensics experts wanted access to the defendant’s computers to “impound, clone and inspect the computer servers, hard drives, individual workstation P.C., laptops and other items containing digital data.” This was presented in a matrimonial action by way of an order to show cause, and it was in character different from the usual discovery request because it was not so much a request targeting particular information, as it was an effort to obtain general access to the entirety of defendants business and personal data. The case is novel not because of the acrimony of the parties or the scope of requested discovery, but because it is an early reported case confronting such a broad request that had a practical feasibility of being fulfilled. Heretofore, in the realm of paper, the impracticality of a “let me see everything” discovery request merely would have prompted an objection — on grounds that the request would be impossible or seriously impractical to fulfill because of undue burden. However, computer systems illustrate the difference between a merely invasive fishing expedition and an overly burdensome one. Computer records are so easily duplicated that the impracticality of the response often can no longer be a principled objection. COMPUTER SYSTEM ‘CLONE’ The creation of a full digital backup of a computer system, that is, the making a “clone” of it, is a mere analogue of what is done every day in the ordinary course of business to avoid data loss. This makes truly expansive e-discovery demands feasible to fulfill, at least with respect to the production of the information. Computers enable the wholesale and rapid copying of data, but they do little to facilitate the review of the content to discriminate what is not appropriate to disclose. The full complement of nonsegregated information on a hard drive, including as it does the metadata, or data about the data, prevents disclosure of clones without significant risk of inadvertent disclosure of privileged or other confidential information that should remain private. Therefore, while the reproduction may be simple, an e-discovery response still requires a content-based analysis. Further, the nature and manner of computer data storage can make it a severe burden that requires extensive and expensive professional judgment if a clone of a hard drive is to be safely delivered to a litigation adversary. CALLS FOR NEW DISCLOSURE RULES Since the Civil Practice Law and Rules (CPLR) do not place the sole right to perform the analysis on the disclosing party, the ease of reproducing digital information raises an inevitable conflict that calls for new disclosure rules. What should they be, and how can we reduce the risk of dragging the court into increasing numbers of e-discovery disputes? While there have been many new suggestions for rules changes dealing with e-discovery, a new suggestion adapted to the particular problem of the rummage e-discovery request would be a court rule discouraging parties from seeking “system access” unless they cannot get the discovery information by less invasive means. Alternatively, such a rule could allow the responding party to object to any request that seeks such system access without first trying other alternatives. System access requests are distinguishable by their breadth, their absence of reasonable targeting that relates to the subject of the litigation and their effort to obtain generalized access to data on the computer system. [FOOTNOTE 2] In the authors’ opinion, system access generally should not be requested or allowed on a first request, except by court order and only after good cause shown. The first round of disclosure should be information-specific and target types of documents or information, such as e-mails, word-processing documents, database entries or other concrete information. In Etzion, Justice Elaine Jackson Stack adopted a practical solution that did allow for limited system access. However, it worked for that case [FOOTNOTE 3] because of the alleged risk of data loss, the significant resources available to the parties and the amounts at stake in the case. The court noted on the one hand that “[t]here can be no doubt that the information being sought fulfills the material and necessary requirement of [CPLR 3101],” but also recognized on the other hand that there was no basis for the plaintiff’s argument that the mere allegation of past fraudulent conduct on the part of the defendant justified a demand described as “all-encompassing” or “a preemptive strike to clone the computer records.” The court did allow cloning of the defendant’s hard drives to proceed, but the court also prevented the direct delivery of the cloned drives to the party seeking disclosure. This was accomplished by requiring the defendant to name each physical location of possible computer data and then, with each party’s computer expert present, the plaintiff’s expert was to be permitted to copy the entirety of the defendant’s hard drives. The resultant copy was to be turned over to a referee, who then with the experts at an agreed location would examine the contents of the hard drives and allow for the creation of hard copies of the business records according to the guidelines set by the court. The court excluded from this process personal records, e-mails and correspondence between defendant and third parties or defendant’s attorneys. This was a fair and evenhanded resolution, but obviously such a process involves very significant costs. The court declined the plaintiff’s motion to shift the plaintiff’s $15,000 cost for the expert (and $15,000 more for the plaintiff’s attorney’s fees) to the defendant, noting that under the CPLR the party seeking discovery should generally incur the costs in production of the discovery material. [FOOTNOTE 4] The court also declined the defendant’s motion to require the plaintiff to post a bond to reimburse for possible damage to his computer systems, reasoning that the presence of the defendant’s expert at the cloning was sufficient protection. There was enough at stake in Etzion to justify such a process, and so the court found a reasonable and workable solution. However, the judicial involvement was significant, and it will not be so easy in other cases in which there are limited resources, or records so vast that the cloning and segregation process will be impractical. CPLR 3101 CPLR 3101 in its present form does not expressly prevent system access requests. It simply provides an extremely broad scope of discovery, allowing inquiry into matter that might lead to admissible evidence. CPLR 3120, providing for the discovery and production of documents or things for inspection and copying relies on CPLR 3101(a)’s standard. [FOOTNOTE 5] A litigant is not even confined by a good faith expectation that the documents disclosed actually will become evidence, so long as they “may” lead to such evidence or provide facts that might support an effective cross examination. [FOOTNOTE 6] CPLR 3103, which provides for a protective order also does not provide much guidance in particular cases. It merely allows for an order to prevent unreasonable expense, annoyance, embarrassment, disadvantage or other prejudice to any person by limiting or conditioning the use of any disclosure device. However, though the court has plenty of discretion in particular cases to do justice, there still is a need for standards to guide the discretion in e-discovery cases because they can present special burdens. A computer system or a hard drive should not be considered by attorneys as a mere “thing to produce and copy,” which a party has a right to have produced for inspection under CPLR 3120. They are qualitatively different from other objects because of the difficulty of apprehending all that they contain. It will be a very unusual case in which such a request that rises to system access would not create problems or fears of improper disclosure, because CPLR 3101(b)(c) and (d) provide absolute and qualified privileges to all disclosure requests. [FOOTNOTE 7] Attorneys should generally temper their initial disclosure requests to avoid unduly intrusive demands, but this is particularly important with computer systems. ANALOGUE TO WAR Regrettably, there are cases in which the parties crafting the scope of requested discovery seem motivated to go well beyond their needs for proof. Sometimes — too often — litigation is considered an analogue to war. In that context the parties are motivated more by the effort to harm the adversary than to obtain the demanded judgment. But even wars have rules, and for litigation the attorneys, as officers of the court, should manage discovery so that the process is not more painful and costly than the loss of the case. Rules involve some level of trust, and the authors have commented in the past [FOOTNOTE 8] that the huge volume of materials created by computer systems requires a re-examination of discovery rules, and a new level of attorney cooperation. Otherwise, if the feasibility of duplicating digital information causes routine e-discovery to more frequently necessitate judicial intervention (as compared to paper discovery), then the legal profession may suffer the dubious distinction as the only field of endeavor for which computers decrease rather than increase efficiency. This would be a most unfortunate indictment of our adaptive skills as lawyers. Thomas F. Gleason is a member of Gleason, Dunn, Walsh & O’Shea, in Albany and an adjunct professor at Albany Law School. Patrick M. Connors is an associate professor of law at Albany Law School, where he teaches New York Practice. He is the author of McKinney’s Practice Commentaries for CPLR Article 31, Disclosure. ::::FOOTNOTES:::: FN1 Etzion v Etzion, -Misc3d -, Supreme Court, Nassau County (Elaine Jackson Stack, J.) Feb. 17, 2005. FN2 System access requests also are distinguishable from system preservation requests, which are far less burdensome. A system preservation request usually requires no more that the party making a copy of digital information, such as a whole hard drive, and then delivering it to a safe keeper, often that party’s own attorney, who will only make such data available later if it truly becomes necessary in the case. Often this never occurs, so the intrusiveness of such a step is minimal. FN3 In Etzion, Justice Jackson Stack obviously had a nasty divorce before her, and at least some basis for the allegation of a risk of data loss. The application was characterized by the plaintiff as an emergency, because of the defendant’s alleged propensity of “past fraudulent conduct” through “shell companies,” “convoluted transfers of funds,” “Channel Island Trusts” and family property transfers. The defendant, on the other hand, called the application “outrageous” and referred to the plaintiff’s attorneys as “reckless” persons who could not be trusted with proprietary information. Nevertheless, even in that context, the court did not order full system access. FN4 The court cites for this non-cost-shifting rule, Schroeder v Centro Pariso Tropical, 233 AD2d 314; and Rubin v Alamo Rent-a-Car, 190 AD2d 661. For a comparison of the federal rules and some excellent discussion on factors to consider in “cost shifting” for e-discovery, see Judge Shira Sheindlin’s opinion in Zubelake v. UBS Warburg LLC, 217 FRD 309, 316. See also Lipco Electrical v ASG Consulting Corp., 4 Misc3d 1019A. FN5 McKinney’s Commentaries 3101, C3101:5, 3120, C3120:2. FN6 McKinney’s Commentaries 3101, C3101:5. FN7 For further discussion of electronic disclosure of raw computer data see Connors, McKinney’s Commentary to CPLR 3120, C3120:2A. FN8 New York Law Journal, Vol. 232, No. 95, “The Volume of E-Discovery.”

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