Electronic discovery is a corporate buzzword like “hardball”, “integrated” and “synergy”. Nearly every lawyer has heard the term, however very few understand it. Even fewer know that electronic discovery does not only apply to document production from corporations. Electronic discovery also applies to the plaintiff.
A few years ago I represented a young woman who suffered a stroke in a product liability case. During the deposition defense counsel questioned her at length about pictures from her MySpace profile showing her in various stages of inebriation and dress. It did not help her case since the pictures were taken and posted after the stroke. Welcome to electronic discovery plaintiff’s counsel.
Electronic discovery consists of two components. Electronic refers to electronically stored information (ESI) and discovery refers to virtually anything that is “reasonably calculated to lead to the discovery of admissible evidence.” Word files, pdf documents, and emails all fall within the definition of electronic discovery. However, ESI also includes information captured from instant messaging programs housed on smartphones, voicemails, websites (like facebook and twitter), and data recorders.
There are two unique characteristics of electronically stored information that is important to understand when requesting this type of information. First ESI is kept for a finite period of time. The moment that the parties’ duty to preserve evidence is triggered becomes important (and extensively litigated). The second unique characteristic of electronic evidence is that ESI files contain information embedded within the document. If the party requesting this information is not knowledgeable about this embedded information then the resulting document production could be altered in such away that it becomes virtually unusable. Triggering the duty to preserve evidence is the first step in the electronic discovery process.
E-Discovery
Preservation Is Key For Both Parties
The question of when the duty to preserve begins is answered in the case law of the specific jurisdiction. Since a large portion of evidence today is ESI, the duty to preserve is at the forefront of the majority of discovery disputes. If, for example, a plaintiff in a product liability case brings a lawsuit based on a design defect theory, it is likely that the decisions on the design of the product were made many years ago. And if the company’s document retention policy provides that emails and memoranda are only stored for seven years, then it is important for the duty to preserve to start as soon as feasible.
Most companies maintain a document retention policy that will address the handling of ESI. Most large companies employ some sort of backup system that will keep emails, documents, and other information in storage for a set number of years. The number of years, of course, varies from company to company and certain industries have rules and regulations addressing this issue. For example, the Securities and Exchange Commission requires that accounting firms retain documents relevant to their audits and reviews of financial statements for a period of seven years. The bottom-line is that the old information maintained in storage will be destroyed pursuant to the company’s document retention policy unless their duty to preserve the material is triggered.
Once the duty to preserve is triggered, the company suspends its routine document retention policy. This suspension is called a “litigation hold”. The party’s counsel will issue the litigation hold in writing, making sure that the manager of the information (the custodian) knows what documents are to be preserved. All documents relevant to the lawsuit are subject to the litigation hold. What a lot of plaintiff’s lawyers forget is that a litigation hold applies to their clients as well.
More and more defendants are asking for posts from Facebook, Twitter and MySpace. Whether a defendant is permitted to see that information or even if it is admissible at trial is a hot topic in local courts around the country. For the purposes of our discussion, it is good practice to make sure that your client does not destroy or erase any posts or entries in online social networks or blogs once you decide to take their case. You should inform them of this in writing. Whether it is electronic discovery from plaintiffs or defendants most disputes arise around when the duty to preserve evidence begins.
The question as to when the duty to preserve discoverable material begins is essentially left to the courts to decide. The federal rules of civil procedure are silent to when the duty to preserve is triggered. However, according to Rule 26(b)(5), “the producing party must preserve the information until the claim is resolved..” It is generally acknowledged that “[t]he duty to preserve relevant evidence – either paper or electronic – is triggered when civil litigation is commenced or reasonably anticipated”.
It is widely accepted by courts that a formal discovery request is not necessary to trigger the duty to preserve. In fact, in most cases the duty to preserve evidence is triggered by the filing of a lawsuit or, at latest, when the defendant is served with a complaint. The most litigated issue concerning the duty to preserve focuses on one single question: how far before the filing of the lawsuit does the duty attach?
Litigation is hot and heavy on the issue of preservation all around the country. The Fourth Circuit held in Silvestri that preserving evidence begins when a party reasonably knows that the evidence may be relevant to litigation. Similarly the Southern District of New York held in Pension Comm. Of Montreal Pension Plan that the plaintiff’s duty is often trigged earlier because they maintain control of filing of the lawsuit. One thing remains clear in all of these discovery disputes: putting other party on notice of pending litigation is extremely important in today’s electronic discovery environment.
It is the policy in our office to send a letter to potential defendants informing them of a potential litigation as soon as possible. This type of letter is called a preservation letter and it is safest way to put the other party on notice to retain discoverable material. It is usually sent to the general counsel or other executive of the company being sued. It is not necessary for the case to be filed when you send a preservation letter. Once the letter is sent, the company would be hard pressed to argue that litigation was not reasonably anticipated.
Once the case is filed and the litigation hold is in place the next step is to figure out what exactly is the company’s document retention policy and how do they store their electronically stored information. Rule 30(b)(6) of the F.R.C.P. provides a quick and easy way to figure out the internal workings of the company’s document management system. The rule provides that a party may take the deposition of someone within a company who has knowledge about a particular topic. In the case of electronically stored information, a party would request the Rule 30(b)(6) deposition of the individual who is the custodian of records. Once you know what the company has on file then you can conduct effective discovery. But that is a topic for another article.
References
1. F.R.C.P. 26(b)(1).
2. See 17 CFR 210 (2011).
3. Zubulake v. UBS Warburg, 220 F.R.D. 212, 216 (S.D.N.Y. 2003); see also NurCor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2009); Cache La Poudre Feeds LLC v. Land O’Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007).
4. NurCor Corp. v. Bell, 51 F.R.D. 191 (D.S.C. 2009); see also Cache La Poudre Feeds LLC v. Land O’Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007).
5. Silvestri v. General Motors, 271 F.3d. 583 (4th Cir. 2001).
6. Pension Comm. Of Montreal Pension Plan v. Banc. Of Am. Sec. LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010)