E-discovery isn’t the future. It’s the now — an unavoidable reality in an already digital world.
Cases can be won because of e-discovery, allowing an attorney to find winning evidence or figure out if an opponent altered data crucial to the issues. More importantly, e-discovery can tank a case through mismanagement, out-of-control budgets and spoliation, all of which can be avoided by knowing about 10 specific things. It may be surprising, but even a little awareness can go a long way in e-discovery.
1. A lawyer needs to understand electronically stored information, or ESI, itself: what it is and what it means to the lawsuit. Critical in many cases is metadata — famously, “data about data” — which includes information of when documents were created, who created them and when information within the document was last altered. This information can render evidence meaningless or incredibly important to a case. A PDF file is often a coy way to provide documents without metadata, which is why the attorney fluent in e-discovery will ask for native files.
2. Where does the data actually reside? In-house counsel are all familiar with their company’s information governance structure and how ESI is maintained, and litigators need to become just as knowledgeable about their clients’ information. Is relevant data on a cloud maintained by a third party in California, on a company’s office computers in New York or on a server maintained by a subsidiary in Japan? What custodians are in possession of the data, and where are they? Litigation attorneys need to be aware of where ESI is, both to collect and produce it in discovery, and to ask for it properly through a request. Not knowing leads to preservation failures and wasted discovery efforts.
3. Litigation holds and preservation obligations. In the federal system, the case Zubulake v. UBS Warburg and notablyZubulake V, the final of five monumental opinions by Judge Shira Scheindlin, solidified the standard that a party’s duty to preserve ESI arises when there is a reasonable anticipation of litigation. Florida’s preservation obligation has been more cryptic, though the combination of the Florida Supreme Court’s 2015 decision in League of Women Voters of Florida v. Detzner with earlier district court cases such as Osmulski v. Oldsmar Fine Wine from the Second District Court of Appeal in 2012 indicate that Florida follows a similar rule of preservation.
Both in-house and outside counsel must issue litigation holds when a lawsuit is on the horizon, making sure to follow up with data custodians. When representing a plaintiff, litigators should also send correspondence to opposing parties, placing them on notice of preservation.
4. For sources of guidance for practitioners of all levels, the Electronic Discovery Reference Model is a framework outlining the e-discovery process.
5. In addition, the Sedona Conference has been e-discovery’s most important think tank, bringing together attorneys, judges and scholars, and publishing sources persuasive as secondary authority in most courts. Especially significant are the Sedona Principles and Sedona’s commentary on a central consideration in e-discovery called proportionality.
6. While the sixth key area is the various rules of procedure in state and federal court that govern the scope of e-discovery, a prime consideration of the rules themselves is proportionality, the balance between the burden and benefit of discovery.
In 2015, Federal Rule of Civil Procedure 26(b)(1) was amended, graduating proportionality upward so that it is on par with relevance itself. Florida has not yet followed, but its proportionality standard is also present in Florida Rules of Civil Procedure 1.280(d)(1)). Whether a source of ESI is to be considered accessible or not for purposes of production depends in large part on the proportionality analysis employed in any given case.
7. On the practical side, at the outset of a matter parties should negotiate and agree to an ESI protocol that governs what data is to be preserved, produced and how. This solidifies each party’s obligations to the other and guides courts in settling subsequent disputes.
8. Interrogatories to IT personnel give an insight into the other side’s data structure.
9. Vendors can provide assistance in negotiating protocols and providing the technology necessary for collection, processing and review of ESI.
10. Lawyers must keep in mind that defensibility of process will be important if data is not adequately preserved, and this can guide a court’s hand in determining whether there has been spoliation and what sanctions, if any, are appropriate.
To be sure, e-discovery can be a minefield, but focusing on what is important and getting the right help can make all the difference for the client and their case.