Electronic Discovery

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Am I Committing Malpractice by Not Considering Electronic Data in My Cases?
by Michele C.S. Lange
July 2004

The ABA reports that substantive errors account for nearly half of all legal malpractice claims – failure to know the law, and failure to follow deadlines, failure to conduct adequate discovery.ii Electronic discovery is no longer a peripheral issue in this area, as the e-evidence explosion – along with a lack of clear federal e-discovery standards – has made it increasingly difficult for litigators to recognize these potential practice hazards

To help avoid judicial sanctions, ethical violations, or malpractice claims, practitioners in both large and small firms alike must understand the details of requesting and disclosing electronic evidence. How do you identify the location of various types of information? Once you find the location, how do you go after the information? Once you get it, what do you do with it? What are the legal issues if you do not consider electronic information?

Ethical Considerations

The momentum of the acceptance of electronic evidence suggests a new set of best practices for attorneys and the organizations they represent. Attorneys also now face new ethical considerations specifically related to how electronic discovery is handled. If oversights occur, both the attorney and the client could be at risk for judicial sanctions, and the attorney could face ethical violations or a malpractice claim.

Judicial Sanctions - Attorneys who are uneducated about e-discovery best practices or knowingly shun the duty to produce electronic documents in their cases may face unsympathetic courts. For example, in a recent labor dispute case, Metropolitan Opera Assoc., Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003), the defendants failed to comply with discovery rules, specifically failing to search for, preserve, or produce electronic documents. The court found that defense counsel: (i) gave inadequate instructions to their clients about discovery obligations; (ii) disregarded that the defendant had no document retention system; (iii) delegated document production to a layperson, who was not instructed as to the scope and procedure of producing documents; and (iv) blatantly disregarded the courts’ and plaintiff’s repeated discovery requests by responding with baseless representations that all documents had been produced. The court granted severe sanctions, finding liability on the part of the defendants and ordering the defendants to pay plaintiff’s attorneys’ fees necessitated by the discovery abuse by defendants and their counsel. Other common law sanctions for improper handling of e-discovery have included: adverse inferences, dismissal or default judgment, restrictions on admissible evidence, assignment of costs, or monetary penalties.

Ethical Violations – In addition to judicial sanctions, most states have professional responsibility rules requiring attorneys to perform legal services with diligence, competence, faithfulness and good judgment, and to not unlawfully obstruct, alter, or destroy another party’s access to evidence. Failing to understand the e-discovery process, neglecting to consider electronic documents and e-mail, or hiding potentially relevant digital evidence could put counsel at risk for an ethical violation. While the first ethical charge for failing to properly handle e-discovery has yet to be notably published, understanding e-discovery best practices will help counsel gain a strategic edge in their cases and avoid disciplinary action by their state bar.

Malpractice Claims – Failing to stay abreast of technology’s impact on the law could place counsel at risk for a malpractice claim. At a conference in Washington, D.C. during the fall of 2003, Judge Loretta Preska, the author of the Metropolitan Opera decision, explained that it is “hard to say” whether an attorney’s failure to seek e-discovery in a case could support a finding of legal malpractice. “The rules talk about the production of relevant information, so we seem to create the burden to seek e-data,” Judge Preska wrote. While noting that the increased costs associated with e-discovery “have changed the game,” she added that she “can’t imagine how counsel who is responsible cannot seek relevant electronic information.”iii

The bottom line is that if clients, under practitioner’s advice and direction, do not properly retain, preserve, collect, and produce electronic documents, the consequences could be costly. To minimize the risk of judicial sanctions, ethical violations and malpractice claims, practitioners should understand the details of preserving, requesting, and producing e-mail, word processing documents, spreadsheets, databases and the like.

What do you do when you think e-evidence may be central to your case?

Finding e-Fingerprints

What do you do when you think e-evidence may be central to your case? First, look to the federal rule governing initial disclosures — Federal Rule of Civil Procedure 26. Rule 26(a)(1) requires, at a minimum, attorneys to be well versed enough in e-evidence issues to counsel clients as to the duty to preserve, locate, and disclose the sources of electronic data within their organizations. Attorneys should recognize that data will commonly be located on:

  • individual desktops and laptops
  • network hard drives
  • removable media (e.g., floppy discs, CDs, USB devices)
  • archival data contained on backup tape or other storage media
  • personal digital assistants (e.g., Palm Pilots, BlackBerrys, cell phones with e-mail capabilities)

The particular type of electronic data that may be involved in the Rule 26(a)(1) initial disclosure, or in later discovery, will vary depending on the issues in controversy. Attorneys should consider the following types of evidence, which may be contained on the media noted above:

  • e-mail (sent, received, or drafted) and corresponding dates, times, recipients, and file attachments
  • word-processing files
  • tables, charts, graphs, and database files
  • electronic calendars
  • proprietary software files
  • Internet browsing applications (bookmarks, cookies, history logs)

In New Jersey Federal District Court, practitioners have a new guiding rule when it comes to the discovery of computer based evidence. Implemented in October 2003, Local Rule 26.1(d) requires lawyers litigating in the Federal District of New Jersey to review their clients' computer and information management systems "to understand how information is stored and how it can be retrieved" at the very start of a case. The rule sets forth specific procedures for the discovery of digital and computer-based information.

Other jurisdictions have implemented or are in the process of implementing similar local rules relating to e-discovery. Besides New Jersey, at least five United States district courts — E. & W. District of Arkansas, Delaware, Florida, and Wyoming — have adopted local rules or standards addressing e-discovery issues. In addition, at least five states, including California, Illinois, Maryland, Mississippi, and Texas, have also adopted court rules specifically discussing this area. Perhaps even more noteworthy are the Federal Rules of Civil Procedure revision efforts underway by the Federal Rules Advisory Committee. In order to help attorneys address e-discovery issues and sidestep potential ethical landmines, the Standing Committee on Rules of Practice and Procedure has approved for publication proposed Civil Rules amendments and forms that will have a significant impact on how attorneys request and disclose electronically stored information.

After the Rule 26 disclosures, more in-depth information can be acquired through a combination of traditional discovery tools: interrogatories, requests for production of documents, and depositions.iv Specifically, the Rule 30(b)(6) deposition is an excellent tool for obtaining more information about the layout of a party’s computer system to guide further discovery. If your client or opponent is a company, be prepared for a deposition of the person most knowledgeable about:

  • the number, types, and locations of computers currently in use and no longer in use
  • the operating systems and application software the company is using, including the dates of use
  • the company’s file-naming and location-saving conventions
  • disk- or tape-labeling conventions
  • backup and archival disk or tape inventories or schedules
  • the most likely locations of electronic records relevant to the subject matter of the case
  • backup rotation schedules and archiving procedures, including any backup programs in use at any relevant time
  • electronic-records-management policies and procedures
  • corporate policies regarding employee use of company computers and data
  • the identities of all current and former employees who have or had access to network administration, backup, archiving, or other system operations during the relevant period

Once you have this information, you can refine your discovery requests to obtain relevant data from the locations and systems identified in the deposition.

In addition to locating electronic evidence, practitioners must pay close attention to their clients’ preservation efforts. While electronic files are easy and convenient to create and duplicate, they are also easy to inadvertently alter or destroy. One of the most common preservation mistakes is failing to cease e-document destruction procedures upon notice of suit. Just like in the paper business world, in the virtual world it is not prudent to save copies of every memo, document, or e-communication. For example, even though most organizations back data up to magnetic tape in the event of catastrophic loss or disaster recovery, an organization’s backup policy usually requires these backup tapes to be recycled or overwritten after a scheduled time period. The best way to protect your clients is to make sure that they immediately halt all electronic document-handling policies that result in the recycling of backup tapes or other e-data destruction as soon as they have notice of suit.

Narrowing the Universe

With electronic evidence, the problem is often not as much, “how can the e-discovery team find relevant information,” but rather, “how can the e-discovery team avoid information patently not relevant.” Think about how many company picnic, birthday, and out-of-the office e-mails you receive each day? Luckily, the e-discovery industry has developed a host of technology solutions that can greatly ease the pain of volume, and which can cull the vast e-document universe to that which is most likely to be relevant to a particular case or issue. Consider:

Custodian filtering - segregates the key custodians who may be relevant to the case and isolates the files associated with those specific individuals

Time and date filtering - targets discrete periods of times which are particularly relevant to a case or which are required to be produced

Keyword searching - searches data by keywords in order to segregate potentially responsive information

Privilege searching - identifies data from custodians who are likely to maintain privileged information (such as in-house and outside counsel) and then applies keyword term searches such as ‘privileged, confidential, attorney, work product’

De-duplication – identifies and eliminates documents that are duplicates of one another (de-duplication can decrease the number of documents that need to be reviewed by as much as 90%, and by 30-40% in the average case)

Beyond e-data collection and filtering, lawyers now have a host of options for conducting the review of electronic documents. Today, lawyers have four options for reviewing and producing electronic documents: paper, native, litigation support database, or online repository. Lawyers have the professional duty and responsibility to evaluate all of their document review options and make a case-by-case decision as to which review method is the most time efficient and cost effective option, in addition to that choice which basically makes the most sense for the particular case.

Keyword Searching Hints
1) Search for “Whole Words.” Searching for “whole words,” which match exact instances of a word, will greatly reduce search time. For instance, typing in Janet (instead of Jan) will avoid pulling up Jane, Janelle, or Janice.
2) Use Multiple Word Phrases. When looking for a particular document, isolating specific phrases can help achieve good results.
3) Avoid Noise Words, Initials, Numbers and Acronyms, if possible. Noise words –such as, a, an, and, and the – and initials, numbers, and acronyms can result in an unreasonably high number of “hits” being returned. Use caution when including these words.
4) Use Boolean Logic and cutting-edge Concept Searching. Boolean search operators (such as and, or, not, etc.) will help broaden or narrow down a keyword search. Concept searching can help attorneys find documents based on relationships between words.
5) Trial and Error. A strict keyword search can be both under and over inclusive. Ultimately, crafting the most appropriate keyword search may require trial and error.

Conclusion

As technological developments simplify our daily activities, they simultaneously create trails of data complicating legal discovery. The question a litigator should ask at each stage in the process—from investigation through trial—is whether one can provide competent and zealous advocacy without engaging in electronic discovery. With 70% of all data now stored in electronic form,v the responsible practitioner knows the answer.



Michele C.S. Lange (mlange@krollontrack.com) is a staff attorney with Kroll Ontrack, based in Eden Prairie, Minnesota.

ii Top Ten Malpractice Traps and How to Avoid Them, http://www.abanet.org/legalservices/downloads/lpl/ten.pdf.

iii Patrick F. Dorrian, Jurists Offer Perspective, Tips on Electronic Discovery, Metropolitan Corporation Counsel (Nov. 2003).

iv Sample electronic-discovery interrogatories can be found at http://www.krollontrack.com/LegalTools/PracticalTools/.

v Lori Enos, E-Commerce Times, Digital Data Changing Legal Landscape, May 16, 2000 (visited July 6, 2001) http://www.ecommercetimes.com/perl/story/3339.html.