This is the fourth and final post in a four-part series on electronic discovery by Christian & Small Partner J. Paul Zimmerman. Click here to read Part I and here for Part II; and here for Part III.
Electronic Discovery: The Rules are Helpful in Smaller Cases
The Alabama Rules of Civil Procedure contain many provisions that are helpful in litigating smaller cases. First, discovery is subject to a proportionality analysis, as measured by such factors as the size of the case, the amount at stake, the importance of the issues, and the parties’ resources. In federal court, when an attorney signs a discovery request, the attorney certifies that the discovery requests are proportionally reasonable for the case. Accordingly, the scope of discovery in a case is subject to a determination of what is reasonable.
Though the Alabama Rules of Civil Procedure do not expressly contain an equivalent to Fed.R.Civ.P. 26(g), a similar requirement is implied. First, under Rule 26(b) (2)(B), discovery requests can be limited based upon what is proportional to the case, i.e., what is reasonable under the circumstances. Second, though technically within the scope of discovery, some sources of data may be deemed “not reasonably accessible” and need not be produced absent a showing of good cause. In determining whether the data source is indeed “not reasonably accessible,” a proportionality analysis is required. That is, certain data may not need to be produced based upon the factors set out in 26(b).
Though largely without substantive effect, Rule 1(c) also should be considered in determining the scope of acceptable discovery.
Now What Do We Do With It?
The ultimate goal of obtaining electronically stored information (“ESI”) is to admit relevant and helpful evidence at trial or in a dispositive motion (even if that preparation is intended to show that the case should be settled). Unless counsel’s practice includes criminal law, “chain of custody” may not be a common term for counsel, but it should be with regard to ESI. Because it is recognized that ESI is fragile and easily modified, authentication requires some showing that the ESI is substantially the same as when it was obtained. This requires thought from the very beginning of the case, especially because failure to properly preserve and collect ESI could lead to problems with authentication at trial or summary judgment. During preservation and collection, consideration needs to be given to how ESI will be authenticated (and how the opposing party will authenticate its own ESI). Even if the case is being prepared for a summary disposition, ESI used to support or oppose the motion should be properly authenticated.
Authorship once again becomes an issue with authentication in the context of ESI. Even if it can be established, through metadata or otherwise, the computer on or from which ESI originated, authentication may require some evidence of whose fingers were on the keyboard. Authentication must not always be established through high tech methods. After all, a handwriting expert is not always needed to admit documents. Probably the most common method is still through a witness with knowledge. But other common methods include unique characteristics, references to other communications or documents, etc. Counsel should also consider stipulations (since it is very possible that both parties may face problems with authentication), requests for admissions, or through a more technologically sound method, such as through the use of hash values. ESI can also be authenticated through proper chain of custody or through forensic techniques.
A Word About Cooperation
Attempt to cooperate with other parties on discovery issues, because a lack of cooperation can lead to unguided, pro hac electronic discovery, which can take over the litigation and kill a client’s budget. Cooperating with opposing counsel regarding scope of preservation, scope of production, form of production, tiered production, etc., can save tremendous amounts of time and money. Furthermore, it sets up discovery disputes in counsel’s favor when counsel has attempted to address issues in advance and the opposing party refuses. A large factor in managing the case to lower costs is cooperating with opposing counsel in an effort to reduce the number of documents that must be reviewed by counsel.
More than one judge has stated that he/she has not had disputes come up when they were discussed by the parties at the outset. Even in state court, a meet and confer request should be considered if the potential for substantial issues regarding electronically stored information are recognized. Pointing out in advance to the opposing party the volume of data that its requests are likely to generate (and the expense associated with sifting through it) often makes the opposing party more reasonable in discussions of the scope of preservation and discovery. Furthermore, attempting to cooperate should be a first step in arguing for cost shifting in overly broad, burdensome discovery requests. While some clients are reticent to cooperate on such procedural matters, buy in is often possible by explaining the potential cost savings, even if only to free up money in the litigation budget for a more vigorous defense on the substantive issues in the case. If need be, make the case for cooperation by showing the client that it can be strategic.
Whether To Engage An E-Discovery Vendor
The key to holding down costs in smaller cases is in the way it is managed, not necessarily in avoiding the use of a vendor, and the single biggest opportunity to manage costs is by reducing the number of documents counsel (or contract lawyers) must review. Consider using a vendor to host and provide review capabilities for discovery documents. While engaging a vendor involves cost on the front end, it is often cost effective for the client in the long run because managing thousands of discovery documents becomes easier and more efficient – it decreases the amount of time spent searching through PDFs or binders looking for documents as the case is handled. If the case involves more than a few thousand pages, discovery documents need to go to a hosting vendor so that better search and analysis of the documents leads to less time wasted manually searching in linear fashion for particular documents. If need be, review a sample of the documents in question (whether from what the client produced or what another party produced) to determine how long a review of the entire document set will take so that a comparison with vendor budgets can measure any savings resulting from a more efficient document review.
Document All Decisions
If a challenge is made to any decision made during discovery, whether concerning preservation, collection, production, or whatever, it is likely to be long after the decision was made. Accordingly, decisions regarding documents to preserve or not preserve, steps necessary to preserve, etc., and the reasons for such decisions, should be documented so that later scrutiny is conducted in light of the facts and circumstances as they existed at the time rather than in hindsight.
For example, the decision not to preserve any emails of a given custodian is easier to defend as reasonable if it is recorded that the decision was a result of the fact that no email to or from that person was found among the emails of the key players in the dispute, even though some connection of that witness to the dispute was later discovered. Keep detailed records of who conducts searches, how those searches are conducted, how documents are preserved, who formulates keyword lists, how documents are collected, and so on. The standard is “reasonable inquiry,” not “perfect inquiry,” but unless those details are known in the face of a challenge when previously undiscovered documents emerge, showing that the newly discovered documents were missed notwithstanding a “reasonable inquiry” will be difficult.
Continue Conducting E-Discovery, But Do It Correctly
The overwhelming majority of evidence is on a computer device. While counsel must still inquire as to hardcopy documents, they are becoming fewer and fewer. Because most potentially relevant evidence is ESI, counsel’s efforts constitute electronic discovery. Once counsel realizes that it is all electronic discovery now (and it is not going away), it is easy to accept that it must be conducted proficiently. As the amount of data involved in litigation increases (and it will), techniques to manage the data correctly, from the start of the case and throughout the discovery process, must be applied, whether by counsel or by engaged vendors. Failure to do so is risky and expensive. Now that counsel realizes that she has already been engaged in electronic discovery, counsel should sit up and do so with confidence.
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.