The age of electronic discovery

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During the past two decades, the shift from storing information in paper files to creating and storing it electronically has led to a sea change in discovery practices.

Courts have begun to address the issue of electronic discovery in a number of cases.

Now the U.S. Supreme Court has proposed changes to help lawyers and courts deal with electronically stored information. On April 12, the high court proposed a number of amendments to the Federal Rules of Civil Procedure that address electronic discovery.

Those new discovery rules, which are expected to take effect Dec. 1, address a variety of issues such as the need to hold an electronic discovery conference, the ability to request the form of electronic data sought, the ability to see the return of accidentally disclosed information that is protected by privilege and provisions for handling information that is not reasonably accessible.

George Paul of the Phoenix-based law firm Lewis & Roca LLP and Timothy Opsitnick of JurInnov Ltd. in West-lake, Ohio, gave attorneys an overview of the new rules during the American Bar Association Tech-Show earlier this month.

Era of Electronic Storage

Paul described the move during the past approximately 15 years from hard storage of information in physical files to electronic storage of information as a watershed moment. Rather than having a paper document stored in one location, companies now have information which only exists within a dynamic electronic system. That information can be stored in a variety of locations on premises and remotely and is capable of being changed each time an electronic file is opened.

“You are entitled to get information searchable by machines, so that you don’t have to go through 100,000 pieces of paper to find out what they are about.” George Paul, Lewis & Roca LLP

“One of the big changes is before, when we wanted to get at the written evidence, we had to get a document, and Rule 34 governed the discovery of documents,” Paul said. “Now, a new category enters the Federal Rules of Civil Procedure pertaining to electronically stored information.”

Now that storage of electronic information is getting less expensive and e-mail is so easy to produce, the number of files being produced is rising exponentially, he observed.

New Proposed Rules

Starting at the very beginning of litigation, Rule 26(f) establishes guidelines for sitting down at a discovery conference to discuss the breadth of information which will be sought and the form those electronic files will take.

That places additional responsibility on lawyers to understand what they are seeking before they sit down with opposing counsel. Paul stressed the importance for lawyers to meet with clients and become familiar with how their information is stored and be able to discuss it with opposing counsel.

Rule 34 has been amended to allow litigants to request the form in which information will be provided. The party providing information cannot simply print out copies of electronic files and expect that to suffice. Litigants are allowed to get the electronic files including all of the information hidden within those files, called metadata.

“You are entitled to get information searchable by machines, so that you don’t have to go through 100,000 pieces of paper to find out what they are about,” Paul explained.

Lawyers will have the obligation to become familiar with the different ways the information is stored and must decide the best way to get what they are seeking.

Opsitnick noted that electronic discovery requires a different approach in each case.

“Each client is different because there are different facts and circumstances,” he said. “I have never encountered a situation which is cookie-cutter.”

Lawyers should not expect that they will need to copy the hard drives of computers in every case or copy all back-up tapes. Not only can that be costly, it may not be the most effective approach.

Unreasonable Discovery Requests

The proposed rules also make accommodations for instances when discovery requests are too onerous. Rule 26(b)(2) addresses discovery requests for information which is not reasonably accessible. In a dramatic change from the traditional rules of evidence, it gives a party to ability to say no when a discovery request is unreasonable.

Paul noted that the new rule has a seven-factor test for a litigant to show good cause why the information is being sought. Cost is a significant element in producing electronic evidence and those who are forced to produce information may be able to shift some of the costs back to the person requesting it.

Preservation is another important issue. Once a client knows of litigation or has reason to expect litigation is likely, there is an obligation to preserve data. At that point, destruction of data can lead to sanctions. That is the time when a lawyer must spring into action to keep a client from destroying or altering data. The concern is accidental destruction or modification of files in addition to intentional acts.

Paul anticipates that lawyers will need to do more than simply send clients a memo.

“You have to go to key players, find out what media they use and counsel them,” he said. “Send them reminders and learn their back-up procedures.”

However, Rule 37(f) notes that if information is accidentally destroyed as a “result of the routine, good faith operation of an electronic information system,” the party may not be subject to sanctions.

Because of the changes in the way information is created and stored, electronic discovery is becoming ubiquitous. “Electronic information will be in every case in federal court beginning Dec. 1,” Paul predicted.

The sheer volume of information and potential costs associated with electronic discovery mean that lawyers must act professionally and work together, he observed.

“This isn’t going to work even with electronic evidence … unless the advocates can get along and be professional and learn what they should about their clients’ systems and do what they are supposed to do,” he said. “If they don’t engage in professionalism, it will crush everyone.”

The proposed amendments to the Federal Rules of Civil Procedure that address the discovery of electronically stored information were approved April 12 without comment by the U.S. Supreme Court. The new rules and amendments have been sent to Congress and will take effect on Dec. 1, unless Congress enacts legislation to reject, modify, or defer the amendments.

For more on the proposed changes to the Federal Rules of Civil Procedure, click here (PDF).

Tony Anderson can be reached by email.