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eDiscovery Update: 3 common objections to ‘dealing’ with electronic discovery

Peter Coons

As an electronic discovery consultant, I often speak with lawyers about handling electronically stored information (ESI) for litigation. Too often, the conversation is about the complete avoidance of dealing with electronic discovery. I sense that this is either because the lawyer either does not have a full grasp of the process, or has the misconception that it is an esoteric and expensive endeavor.

While some cases may not warrant a full blown electronic discovery effort for myriad reasons, it is not appropriate or ethical to sweep it under the rug; attorneys must at the very least undertake some initial due diligence. Below is a list of the three most common objections I hear to embarking on the electronic discovery path.

Reason 1 — “… we mainly operate in state court so we don’t deal with electronic discovery.”

While federal court matters may be larger in scope and have additional layers of complexity, this is not necessarily true, that state matters will not have ESI in play. In any event, it certainly does not mean that ESI be neglected entirely. Attorneys cannot continue to take the ostrich approach to electronic discovery even if they operate only in state court. In July 2010, New York state amended its Uniform Rules to include language addressing electronic discovery.

Rule 202.12 Preliminary Conference

• Where a case is reasonably likely to include electronic discovery, counsel for all parties who appear at the preliminary conference must be sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery: counsel may bring a client representative or outside expert to assist in such e-discovery discussions.

This provision makes it clear that electronic discovery must be addressed at the preliminary conference. If you do not have the time or capacity to understand technology or electronic discovery, then find and utilize the expertise of someone with legal technology expertise.

Prior to the change noted above in 2010, the rules were amended in March 2009 to include the following provision about items that may be addressed in the preliminary conference:

202.12 C – 3) Where the court deems appropriate, establishment of the method and scope of any electronic discovery, including but not limited to

(a) retention of electronic data and implementation of a data preservation plan,

(b) scope of electronic data review,

(c) identification of relevant data,

(d) identification and redaction of privileged electronic data,

(e) the scope, extent and form of production,

(f) anticipated cost of data recovery and proposed initial allocation of such cost,

(g) disclosure of the programs and manner in which the data is maintained,

(h) identification of computer system(s) utilized, and

(i) identification of the individual(s) responsible for data preservation;

The changes made in 2009 make an outstanding checklist of items to discuss in the preliminary conference.

Reason 2 — “… both sides just agree not to deal with it because it is too expensive and complicated.”

OK, I get it, electronic discovery is so convoluted, we can just forget about it, and since both sides agree to look the other way, it is fine.

Is it ethical to agree with the other side to just avoid a major source of evidence because of the belief that it is too complicated or it may be expensive? I will let you ponder that question and be judge and jury.

Speaking of ethics, is it ethical to not have any knowledge of electronic discovery or the latest technologies to handle it?

Another comment was made to me by a senior partner at a law firm after a demonstration of a common litigation support and document review application. The attorney was astonished that this application could ingest and display documents and emails in addition to making them searchable. We ran some keyword searches, documents appeared in a results window, the terms were highlighted within the documents. I thought he was going to faint.

It was if he had been asleep for 100 years and I was showing him a computer for the first time. He was also amazed that he could tag documents responsive or non-responsive. His statement to me after the demonstration was, “… I would have to say that it is almost malpractice if attorneys are not using tools like this to review documents.” He said it, not me.

It appears that the ABA agrees with the above statement. One only needs to look at the Model Rules of Professional Conduct and Rule 1.1, which states that a “lawyer shall provide competent representation to a client.” Recent changes to that Rule include this line, “including the benefits and risks associated with relevant technology.”

The key line is benefits associated with relevant technology. Is using a document review application a benefit? Sometimes yes. Is being aware that document review applications actually exist and knowing if using one might be beneficial important? I don’t think I am going out on a limb by saying yes.

My point is that the process does not have to be complicated or expensive. Can it be one or both? Yes, it can, but without an initial investigation it is not proper to assume either for every matter.

Reason 3 – “I only handle personal injury cases so there isn’t any ESI.”

This was actually said to me last week and I challenged the attorney by asking him a couple of questions. The first was, “what if it is a slip-and-fall matter and there was a camera that recorded the entire event?” If that was the case then surely it would be important to send a preservation letter or notice to the party that controlled the media on which the recording was stored.

That notice should be followed up with an inquiry about what is being done to preserve the information, and once satisfied with the response, a plan should be made to properly collect the recording for further analysis. Most recordings these days are stored on devices that have hard drives (just like your computer) and the recordings may be overwritten in a short time frame. Again, knowing about technology and how it can affect your case is paramount.

The second challenge question I posed to this partner concerned social media sites such as Facebook. For some unknown reason, many people thoughtlessly post every detail of their lives. You probably know one or two of these folks. These posts can hurt your client and your case.

If your client is claiming he or she has been hurt and cannot enjoy life as they once knew it, they should not be posting pictures of themselves swimming with sharks or scaling mountains. In no way should you be directing your client to delete items that have already been placed on social media sites, rather, guidance should be given that people are watching.

Nothing is private and courts, even state courts, have granted full and unfettered access to individuals’ social media sites to requesting parties. If you must produce data from your client’s site then it is important to preserve it properly and document what was done to ensure its admissibility. It does not have to be a complicated or expensive process to employ sensible best practices when it comes to preserving ESI from social media sites or any other media. 

On the flip side, if you are representing a party against a PI claim, what is the opposing party posting on his or her social media site? What are they doing to preserve and produce that material in an acceptable fashion? Get ready to discuss it in the preliminary conference — remember the checklist?

So what are your reasons for not considering ESI in every case you are handling?

Peter Coons is a senior vice president at D4, providing eDiscovery consulting services to clients. He is an EnCase Certified Examiner, an Access Data Certified Examiner, a Certified Computer Examiner (computer forensic certificates) and is a member of the High Technology Crime Investigation Association, the professional organization for people involved in computer forensics.