Decades ago, trial attorneys could pretend that electronic evidence did not exist. There was a time when personal computers were an extravagant personal purchase and bulky cellular phones were state of the art. Those days are long gone. The Florida Bar has mandated that lawyers obtain technology CLE credits and other states are following. Understanding the role and importance of electronically stored information (ESI) is a critical trial-lawyer skill. Mechanically, the best trial lawyers (aka barristers), must know how to preserve and then introduce ESI/digital evidence. Trial lawyers should consider taking the following steps during the life cycle of a civil case.
E-Discovery law recognizes that if a party to potential litigation sends the opposing potential party a so-called preservation letter, the receiver may have an obligation to implement a “litigation hold” on relevant ESI. This means the evidence should be preserved even if it would otherwise be subject to destruction per a company’s document retention policies. To learn about preservation letters and litigation holds, consider looking at my E-Discovery Guide: GlanceCharts Quick Guide to Federal E-Discovery. The consequence of failing to preserve digital evidence after such correspondence could be severe: a sanctions order for spoliation per FRCP 37.
Counsel for civil litigants are required to meet and confer shortly after service of process in virtually every federal civil case. The rules specifically require that counsel discuss potential E-discovery issues. This is not the place to “play it by ear.” If you anticipate that E-discovery, such as production of emails from a voluminous data set, is necessary, you need to bring that up. Among the topics that should be discussed are acceptable search terms and production formats. You may even want to push for a discovery conference with the Magistrate Judge, with a notation of that request in the Case Management Report you are obliged to work on with opposing counsel.
Think broadly about how the opposing party may have communicated with key witnesses. Emails, text messages, voice mails, social-media messengers and similar digital messaging channels can all be in play. Don’t forget social media posts. As part of your discovery, determine who can authenticate the ESI. You will need that information later when you go to trial. If the data is stored on a mobile device or medium, like a portable USB drive, you may also need to address chain-of-custody issues.
Don’t be surprised if your opponent narrowly construes a discovery request by time frame or subject matter. If you’ve thought through the potential evidence in the case early on (see my Article about “Front-end Loading a Case”), you will be better equipped to argue why the discovery may uncover relevant evidence. One argument you may get is that the discovery is disproportionate to the burden. You may need to retain an E-Discovery expert to challenge that argument.
As a barrister, you have an obligation to aggressively uncover the facts. Digital evidence and electronic discovery are now core elements of civil-trial practice you must master.