This is the first post in a four-part series on electronic discovery by Christian & Small Partner J. Paul Zimmerman. Click here for Part II, here for Part III, and here for Part IV.
Anyone who has taught a child how to ride a bicycle knows that most kids start riding without realizing that no one is holding onto the bike anymore. In other words, the child is riding and does not even realize it. Similarly, litigators are conducting electronic discovery, but simply may not realize it and have been successful in deluding themselves into thinking that they do not (or do not need to) conduct electronic discovery. Once litigators realize that they are already involved in electronic discovery, then it is not so scary (just like the child realizing that she’s riding all on her own). The next step is to become more competent and more capable.
The goal of this article is to assist attorneys in their electronic discovery practice. This goal is reached by first helping litigators realize that they are already riding the bike. This article will discuss some basic tips, particularly for smaller cases, and provide resources for continued development of electronic discovery practice. This article discusses the “small” case common in litigation, involving maybe a handful of computers, and with relevant players that have cell phones.
The context of this article is very important. As explained later, proportionality analysis, such as pursuant to Ala.R.Civ.P. 26(b)(2)(B), is key. What is considered appropriate or reasonable in the “small case” may not be, and indeed, probably is not, appropriate for the “big case.” Much of what is in this article is not scalable and will not apply to all situations. For example, while “self collection” will be acceptable in many cases and for many litigants, some institutional clients may not act reasonably in self collecting, and it may not be appropriate when wrongdoers (such as rogue employees) may try to delete data. Never lose sight of the possible need to meet higher standards, whether in discovery practice or, almost assuredly, in regulatory investigations. But for now, continue on, even if it is with training wheels.
We are already conducting electronic discovery
Electronic discovery is not just teams of contract lawyers sitting in a review center in some unknown location, reviewing millions of documents in a class action employment suit against a multi-national corporation. It is not just the production of hundreds of thousands of documents in native format collected from a virtual server, the restoration of back-up tapes, or the harvesting of an entire data base. Electronic discovery is simply discovery involving information stored on a computer or memory device. If the case involves devices and media such as email, computer files, spreadsheets, text messages, Gmail, or a smartphone, it involves electronic discovery.
Many attorneys confuse the form of production with electronic discovery and say that they “avoid electronic discovery.” That is probably not really what they mean, given that discovery must certainly include information stored on computer and memory devices. Rather, most attorneys who speak of “avoiding” electronic discovery are generally referring to the form of production, and simply elect to produce (and agree to accept) either paper documents or static PDF images. And for many cases, the production of hardcopy documents or static images (e.g., PDFs), is fine.
But it is time to stop thinking that we are “avoiding electronic discovery” simply by not producing documents in electronic form or hiring an electronic discovery provider. The bottom line is that assisting or advising clients concerning relevant emails, Word documents, spreadsheets, pictures on a camera phone, or when there is a possibility that relevant text messages were exchanged or messages were posted on social media, is electronic discovery. It really is that simple, and it is nothing to avoid. Indeed, ethical duties prohibit the avoidance of e-discovery if relevant information is stored electronically. It is essentially impossible in this age to conduct litigation without handling electronic discovery – it is only a question of handling it correctly.
Start to finish, electronic discovery is the “process of identifying, locating, securing, and producing” information stored on a computer or memory device. Of course, to be able to conduct more thorough electronic discovery, the attorney must adequately interview the client and discuss the related issues with opposing counsel (and often non-parties). Taking the right steps generally will not happen without asking the right questions. In the same way that much of the computer world may be foreign to the attorney, it could be foreign to the client as well. Not only that, but even if the client understands the technology and the issues that relate to electronically stored information (“ESI”), the client will need assistance with understanding how legal burdens and implications affect how the client’s ESI is handled within the context of litigation.
Simple steps to better managing electronic discovery
The very first step in managing electronic information in a case is to explore the data potentially involved to the same degree as the merits of the case. Two duties affect the attorney’s work here:
(1) the duty of competence under Rule 1.1, and
(2) the duty to conduct a reasonable inquiry under Rule 26.
Use a checklist in the course of this discussion to ensure that nothing is omitted and to document the discussion in case an issue of spoliation arises later. Checklists used in discussions with the client should be comprehensive, just like checklists used in other areas. This can make the checklist a bit intimidating for some attorneys. Simpler checklists are available and could be used in cases that are simple in terms of sources of data, types of data, volume of data, etc., but they obviously increase the risk of omitting relevant information. All aspects of electronic discovery start with an understanding of the data and the sources of data involved in the case, and that is generally only discovered by accident (if at all) if it is not specifically discussed with the client early in the case.
This post, as well as the others in this series, was excerpted from Zimmerman’s “It’s All Electronic Discovery” article in the spring issue of the Alabama Defense Lawyers Association Journal magazine. Click here for the full article.