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Reining in E-Discovery

By Geraldine Soat Brown

E-discovery has become the bête noire of litigation, and not without cause. Searching for electronically stored information (ESI) can be very expensive, and the consequences of not doing it correctly can be serious. Clients love communicating, processing, and storing information electronically, in increasing and ever-changing media. For their lawyers, that creates a challenge. Discoverable ESI may be lurking in every communication medium. Searching the company computer for email is not enough when, for example, the employees also communicate via personal devices.

E-discovery is qualitatively and quantitatively different from paper discovery, and it is not going away. To rein it in, lawyers must rethink their discovery practices to deal with the twenty-first-century reality. Use the revised rules effectively, learn technical information from the client, and make anticipation and cooperation part of the discovery process.

The Revised Rules   
 “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). Accordingly, receiving a request for ESI does not necessarily condemn the client to an expensive hunt through long-abandoned formats. It does, however, require the client to say what exists, what will be searched, and what will not be searched. Stating expressly, for example, that your client will not be searching backup tapes from a specific time period gets the issue out front for prompt discussion and ruling, if necessary.

Identifying a source as not reasonably accessible in a discovery response does not eliminate the obligation to preserve potentially responsive information located in that source, however. What a party is required to preserve and when that obligation arises are different questions, beyond the scope of this article. But preservation disputes can be minimized if they are addressed at the outset of litigation. That’s why revised Rule 26(f) requires the parties to discuss in their planning conference “any issues about preserving discoverable information.” Fed. R. Civ. P. 26(f)(2).

Another bane of e-discovery is the risk that privileged or work-product protected materials will be disclosed in the course of producing ESI, resulting in the nightmare scenario where turning over one privileged document triggers a waiver of privilege or protection for all materials on that subject. Federal Rule of Evidence 502 defines and potentially limits the situations in which privilege and work-product protection are waived. Under Rule 502(b), an inadvertent disclosure of privileged materials does not result in a waiver of privilege or work-product protection for undisclosed materials if the holder of the privilege or protection took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error. Subdivision (c) limits the circumstances in which a disclosure in a state court proceeding results in a waiver of protection in a federal proceeding. And subdivision (f) makes Rule 502 applicable in state proceedings as well in arbitration proceedings mandated by a federal court. Rule 502(e) permits “claw-back” or “quick peek” agreements that allow parties to produce ESI with little or no pre-production review and take back any privileged materials that were produced, without waiving any privilege that may apply to that material or any other material. Of course, taking the document back doesn’t “un-ring the bell.” The opposing attorney may remember the privileged communication even if it has to be returned. But the client may decide that such risk is an appropriate trade-off against the expense of pre-reviewing huge volumes of ESI, especially if the “quick peek” is limited to a specific set of materials that are not expected to include confidential information.

Rule 502(d) is a valuable and under-used tool for minimizing the risks of e-discovery that allows a federal court to “order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event, the disclosure is also not a waiver in any other federal or state proceeding.” With a Rule 502(d) order, you can sleep nights, knowing that even if a privileged document was included in the mass of production, it’s not going to explode into a subject matter waiver here or in any other proceeding.

Know Your Client’s Data System    
Understanding your client’s information storage and retrieval system is critical to using the federal rules effectively and convincing a judge to rein in an unreasonable e-discovery request. You must be able to identify what ESI is “reasonably accessible” to your client and what is not. You also must be able to state the form in which ESI will be produced

A response under Rule 34 requires that you enlist your client’s technical support staff to educate you about how the system works now and how it has worked over the relevant time period. If your client doesn’t have a dedicated technical support staff, talk with the person who enters data and retrieves information. That may be the office manager or the bookkeeper, or perhaps it is the individual client who uses his own laptop. The point is to have a focused and detailed conversation with the most knowledgeable person about all of the ways your client communicates and stores information. The more complex those ways, the more you will have to learn.

Too many e-discovery disputes are generated by lawyers who don’t know what they are talking about. They ask for data they wouldn’t know what to do with if they got. They object to requests without having any real facts about how a reasonable search would be done and what could be obtained. They bandy about buzz words—”native format,” “metadata”—but when pressed, they can’t explain what the words mean to discovery in the case at hand.

As a judge, I want the facts I need to decide questions, like whether the burden of producing is undue. I’m not an expert in electronic information storage systems, but I’m willing to be educated. That’s the lawyer’s job. Being able to explain, clearly and accurately, how your client’s system works is essential to being persuasive in any e-discovery dispute.

Anticipate and Cooperate
Litigators are used to dealing with the legal consequences of a previously established set of facts. E-discovery is different. You have to get ahead of it.

Preservation of ESI, before and during the lawsuit, is shaping up as a major battlefield. The revised rules provide a limited safe harbor. “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” Fed. R. Civ. P. 37(e). That rule, however, does not attempt to define when “good faith” requires modification of the system to preserve relevant information. Fed. R. Civ. P. 37(f) advisory committee’s notes (2006) (re-numbered 37(e)).

The parameters of the preservation obligation are still unclear. What is clear is that the lawyer must be not only an advocate after the fact but also a counselor, assisting the client to create a reasonable and realistic policy for preserving ESI as soon as a claim appears likely. After the lawsuit has been filed may be too late. Obviously, any such counseling requires a clear understanding of the client’s information processes and must be revised as the client’s system changes.  

You also must think ahead when you’re designing the search to locate documents in response to a discovery request. Anticipate the possibility that a stray privileged communication may slip into the production. Think about how you will demonstrate that you took reasonable steps to prevent inadvertent disclosure of privileged or work-product protected materials, as required by Rule 502(b), to avoid a subject matter waiver.            

Perhaps the best way to rein in the e-discovery beast, however, is for all of the lawyers in a case to act professionally and cooperatively. Initially, ESI was seen as an asymmetrical game, in which individual plaintiffs could force corporate defendants to incur huge costs searching for ESI. But now even individual plaintiffs have discoverable ESI—in email, social networking sites, text messages, and the like. Controlling e-discovery by focusing early on what sources are most likely to have the most important information is in everyone’s interest.

The revised rules contemplate a dialogue about ESI between the parties, early and often. Rule 26(f) requires that ESI be part of the parties’ discovery planning conference, but rarely have I seen any report of a Rule 26(f) conference that included a serious discussion of ESI, what should be preserved, and what is reasonably accessible. In addition, a number of judges and courts across the country have local rules or standing orders requiring that e-discovery agreements be part of the proposed scheduling order under Rule 16(b) of the Federal Rules of Civil Procedure. Collected local rules and standing orders can be found at www.ediscoverylaw.com (following the link to “Resources”). Again, you have to anticipate; you have to come into the planning conference knowing enough about your client’s system and what you want from the other side’s system to make some important preliminary decisions. Frankly, all too often lawyers are not prepared.

Recognizing the importance of cooperation, a group of judges and lawyers in the Seventh Circuit formed a pilot program to promote cooperative facilitation of e-discovery. The program’s website has a wealth of resources to help lawyers and judges deal with e-discovery, including collected cases on e-discovery issues and helpful publications.    

 The project committee proposed a Standing Order Related to the Discovery of Electronically Stored Information (available on the website), which has been substantially adopted by all of the magistrate judges and many of the district judges in the Northern District of Illinois. Its central concept is that e-discovery’s unique challenges are best faced early, candidly, and cooperatively. It requires the parties to meet before the initial status conference with the court to identify and discuss how e-discovery will be conducted in the case, including preservation issues. The standing order doesn’t dictate what should be preserved or produced in a particular case. Rather, it sets out some guiding principles. Discovery and preservation should be reasonable under the circumstances and follow the principles of proportionality found in Federal Rule of Civil Procedure 26(b)(2)(C). Disputes that cannot be resolved between the parties should be presented to the court promptly, and counsel must understand how their clients’ data are stored and retrieved.

If you have a strategy, navigating e-discovery is much easier. Use the rules to your advantage, understand your client’s technology systems, anticipate the issues, and work to resolve them proactively in cooperation with other counsel. Your judge will thank you for it.

Keywords: litigation, trial tips, e-discovery, ESI, federal rules, FRCP 26, FRE 502, FRCP 37

Geraldine Soat Brown is a U.S. magistrate judge in the Northern District of Illinois.

This article was adapted from a longer one that was published in the Summer 2011 issue of Litigation.


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