III. Some Basics and Background of E-discovery Competence
A. The 2006 Amendments to the Federal Rules of Civil Procedure
To competently represent a client in litigation, lawyers must know the rules of the courts in which they practice. In 2006, the Federal Rules of Civil Procedure were amended to address e-discovery. Additional rule changes specifically addressing e-discovery became effective December 1, 2015. As of September 2015, only a handful of states had not enacted or taken preliminary steps toward enacting e-discovery rules. Most states adopting e-discovery rules have modeled them on the Federal Rules. Even in jurisdictions that have not adopted their own rules, familiarity with the Federal Rules arms lawyers to address most e-discovery issues that might arise.
The 2006 amendments to the Federal Rules that ushered in the e-discovery era in federal court certainly can be criticized. The e-discovery rules have added frightful expense to federal litigation. Given that the most widely publicized and influential decisions interpreting and applying those rules have been issued in cases involving enormous amounts in controversy, reasonable observers can rightly wonder whether the e-discovery rules are being interpreted in a manner that makes compliance cost-prohibitive in all but those cases that involve the highest of stakes. The 2015 amendments are designed to address such concerns by, among other things, explicitly incorporating "proportionality" into what the appropriate scope and manner of discovery should be in any particular case.13
Regardless of such broad policy concerns, lawyers seeking to meet their professional responsibilities must take relevant e-discovery rules in their jurisdiction as they are presently constituted and must be prepared to fully understand and comply with them. For some seasoned lawyers, doing so can still shock the system because of the ways in which the 2006 amendments altered the landscape of pretrial procedure in federal court. The current importance of the Rule 26(f) conference in federal court is a perfect starting point for understanding the changed terrain.
Assume that you have been engaged to represent a client in a case filed in federal court in your state. A relatively few years ago, your interaction with your client with respect to shaping a Rule 16 scheduling order and the related requirement of a Rule 26(f) planning conference with opposing counsel would likely have been limited. In many cases, your interaction with opposing counsel at a Rule 26(f) planning conference may have been limited to exchanging proposed scheduling orders and haggling over deadlines. Since the 2006 amendments, however, the days in which the Rule 26(f) planning conference could be treated so cavalierly are gone.
The Federal Rules of Civil Procedure now require counsel—at the outset of the case and before any discovery is served—to discuss the preservation and production of ESI. Rule 26(f) instructs counsel to discuss up front how the inadvertent production of privileged information will be handled and the possibility of expediting production while addressing privilege concerns through "clawback" or "quick peek" agreements. As a result, lawyers' duty to communicate with clients now requires them to discuss with a client in advance of the Rule 26(f) conference the client's technology systems, processes, and capabilities, as well as the client's understanding, if any, of an adversary's systems, processes, and capabilities.14 Lawyers' duty to communicate also includes exploring what concessions and agreements as to e-discovery issues they should seek in the Rule 26(f) planning conference. Lawyers may need to educate clients concerning clawback agreements and other concepts with which they are unfamiliar.
The 2006 amendments expressly introduced "electronically stored information" into the Federal Rules. Rule 16(b)(3) specifies that any scheduling order entered by the court can "provide for disclosure or discovery of electronically stored informa-tion."15 Rule 26(a)(1)(A) adds "electronically stored information" to the items in a party's possession, custody, or control that must be provided as an initial disclosure if the ESI may be used by the party to support its claims or defenses.16 Rule 33(d) allows a party to answer interrogatories by directing the requesting party to business records, "including electronically-stored information."17 Rule 34 distinguishes "documents" from "electronically-stored information,"18 reflecting the recognition that it is "increasingly difficult to say that all forms of electronically-stored information, many dynamic in nature, fit within the traditional concept of a 'document.'"19 Rule 34(b) provides the procedure for parties to sort out the form of production of ESI. The default form of production is that in which the information is "ordinarily maintained" or in "a form that is reasonably useable."20 The requesting party is free to specify the form of production it desires;21 if the producing party wants to produce in a different form, it must object.22
Rule 26(b)(2) establishes a two-tiered system in e-discovery with respect to ESI: (1) sources of ESI that are "reasonably accessible" and (2) sources of ESI that, whether due to burden or expense, are "not reasonably accessible." Under this two-tiered system, the party responding to discovery is not obligated to provide ESI from sources that are identified by the party as not reasonably accessible, although the party may need to identify the sources that are not being searched or from which a collection is made. Even sources and information that are not reasonably accessible and thus are not within the scope of parties' production obligations may be covered by the parties' duty to preserve evidence.
The 2006 version of Rule 37(e) provided a safe harbor against sanctions for the loss of ESI. "Absent exceptional circumstances," a court could not impose sanctions for the loss of ESI "as a result of the routine, good-faith operation of an electronic information system."23 The 2015 version of Rule 37(e) establishes that if ESI is lost because a party failed to take reasonable measures to preserve it and it cannot be restored or replaced, a court may order measures "no greater" than necessary to cure any prejudice; the harshest sanctions of allowing or instructing the jury to make adverse inferences, dismissing a claim, or entering a default judgment may be imposed only upon a showing that a party intended to deprive another party of the lost information.24
In addition to familiarizing themselves with these rules, lawyers must also investigate any local rules on e-discovery that may have been adopted by a district court in which they are litigating a matter. Lawyers must also be aware of state court variations of e-discovery rules modeled on the Federal Rules.
B. How ESI Differs from Paper Records
The heightened danger that e-discovery poses to litigators is rooted in the differences between how ESI is created and used compared to paper records. To competently advise and represent clients in modern litigation, lawyers must fundamentally understand these differences and, in turn, appreciate how their clients work with ESI and where it might be found. It is these differences that make analogies to paper discovery dangerous. E-discovery is not the simple production of paper records in an electronic format.
1. Metadata: What Lies Beneath the Surface?
Metadata is one of the fundamental elements that separate ESI from paper records. Rafts of metadata are generated through the use of common software programs as well as through the use of e-mail, instant messaging, text messaging, and other forms of electronic communication. Metadata will often be useless or irrelevant. Yet metadata can be critical to, if not dispositive of, the resolution of key issues, such as the date and time a document was actually created, or when it would reveal otherwise undisclosed contributors to a document.
Metadata can be broadly classified into two categories: (1) "system" metadata, which is automatically created by the software program without any action by the author beyond the use of the program; and (2) metadata that is created by the software program because the author is using certain features. The system metadata created by the mere act of composing this chapter using a common word-processing program includes such things as the author's name, the location on the computer's hard drive where the document is saved, the date and time the chapter was originally created, and the dates and times—continuously updated and changed—reflecting when the document was last modified and the file was last accessed. The intentionally created metadata, however, would include any embedded comments created by the authors or any use of the "Track Changes" feature to log revisions in a manner that is readily apparent to reviewing co-authors or editors. In short, every document created electronically can, when transmitted electronically, carry metadata unless the sender takes precautionary steps to remove or reduce it.
2. Here Today, Gone (but Possibly Not Really Gone) Tomorrow
From a discovery perspective, perhaps the most perilous difference between ESI and paper records is that it usually is not possible to lose or destroy paper records through inaction, or even through action properly characterized as passive negligence. It usually takes some type of intentional act or active negligence to lose or destroy paper records. Not so with ESI. Consider an e-mail sent between two employees in a typical corporate setting. Depending on the default retention settings for an employee's...
