Simplifying Electronic Discovery

Simplifying Electronic Discovery

In an age when vast amounts of electronic data can affect the outcome of litigation, the rules of electronic discovery (eDiscovery) can no longer be ignored. In fact, many state bars are mandating technology-focused CLE. Why? The consequences of ignorance can be devastating: large monetary sanctions against you and your client for failing to preserve electronic evidence.

I propose that eDiscovery law can be simplified by thinking in terms of the chronological steps from the creation and storage of data to the advent of a dispute and, finally, to the resolution of an eDiscovery specific issue. The timeline is as follows.

1. Creation, storage and preservation of electronic evidence

Think of electronic evidence in the broadest terms possible:

  • CDs and DVDs
  • Thumb drives
  • Data in the “cloud”
  • Files on a server
  • Text messages
  • Voice messages
  • Emails on cellphones
  • Other data on personal electronic devices

Businesses may (or may not) have retention and deletion policies. In eDiscovery law, the first critical question is determining when data that would otherwise be deleted, because of a retention policy, should be preserved. Here, the student of eDiscovery law learns the principles of preservation based upon the “reasonable anticipation of litigation.” Such preservation is implemented through a “litigation hold.”

2. The initial phase of litigation

If a dispute mushrooms into litigation in federal court, the Federal Rules of Civil Procedure impose two initial requirements on counsel:

  1. First, the attorneys must “meet and confer” to discuss the preparation of a case management report. This report must address eDiscovery issues, including the timing and forms of discovery, as well as the identification of possible future discovery concerns or disputes.
  2. Soon thereafter, the parties are obligated to make an initial disclosure of witnesses and exhibits, which could conceivably include electronic evidence subject to discovery.

3. The forms of eDiscovery

All forms of discovery permissible under the Federal Rules of Civil Procedure are available in eDiscovery. Practically speaking, requests for production and depositions predominate. At this stage, practitioners must be familiar with eDiscovery vocabulary such as “native format” and “metadata.” The idea is that the data being produced should be in a form that the opposing party can decipher. At the same time, consideration must be given to avoiding exposure of confidences and privileged material.

4. eDiscovery disputes

The simpler forms of eDiscovery disputes mirror the dance of traditional civil litigation: motions to compel and for protective order. That being said, a recent revision to the Rules injected considerations of cost proportionality, meaning that the court will look at potential discovery expense when considering whether to compel production of data. Perhaps the thorniest eDiscovery issue is spoliation (i.e., lost or destroyed electronic data). Rule 37 now encapsulates the ground rules to decide spoliation-based motions.

Think about eDiscovery law as the end result of a chronological process.

  • Creation, storage and preservation of electronic evidence
  • The initial phase of litigation: the “meet and confer” conference and initial disclosures
  • eDiscovery itself
  • Resolving eDiscovery disputes

I hope you find this useful. If you are interested, I’ve created a reference guide for learning eDiscovery law: GlanceCharts Quick Guide to eDiscovery.

While this discussion is centered on federal practice, be aware that most states have adopted eDiscovery rules as well. Many states have modeled those rules after the Federal Rules. eDiscovery may not rear its head in every case, but if you are not familiar with at least the basics, you are putting your practice at risk.

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