E-Discovery Update: Direct Inspection Of Opposing Party Source Documents

Civil litigation in the United States is a largely self-policing activity that requires litigants to trust that their opponents are playing by the same rules as they are. Through the interface of their legal counsel, litigants who may personally (and deeply) dislike each other are nonetheless expected to cooperate in arranging the parameters of fact discovery and other logistical aspects of a case. And amazingly, more often than not, this system actually works. Sometimes, though, a party may strongly believe that their opponents are holding back relevant discovery materials in violation of their legal obligations to turn them over. If the materials are thought to be important enough, one option open to requesting parties under both federal and state rules of civil procedure is to ask the judge to permit them to inspect the materials directly instead of relying on the producing party to organize the materials for them. Such requests have been made for both hardcopy and electronic materials for many years, though somewhat remarkably for the constantly-evolving law of e-discovery, most courts have consistently denied this relief, finding it unwarranted and overly intrusive.

Benefits and Complications of Direct Inspection

Seeking inspection of source materials in the manner in which they are stored is nothing new. Before the cheap availability of photocopiers, discovery often involved reviewing original documents, often pulled from the files on a rolling basis as discovery progressed. Even after photocopying became common, producing parties often found it more economical to provide a requesting party with access to its document warehouses and archives rather than duplicate truckloads of paper. Naturally, this same philosophy transferred over to electronically stored information ("ESI") as it became relevant in legal disputes. Indeed, before the rise of removable storage media, it's unclear exactly how easily ESI could have been duplicated for production in discovery. Even today, some proprietary databases cannot easily be harvested, much less produced, to requesting parties, and litigants continue to request direct access to these large data repositories so that they can test, revise, and otherwise develop queries that ultimately serve as the basis for focused reports or data exports to use as evidence in the case.

Key to this type of document inspection, however, is that the producing party still retains control over the information available to the requesting party for review. In the case of hardcopy discovery materials, boxes of original paper documents may be sampled or reviewed completely before turning them over for analysis by opposing counsel. On the electronic front, a corporate employee would normally run database queries and selectively print or share results with opposing counsel, rather than sharing results in real time.

Litigants have always objected strongly when a requesting party seeks access to potentially relevant files and documents in an un-reviewed, unfiltered state. Providing direct access to source documents in this condition carries obvious risks, regardless of whether they are stored digitally or in hardcopy form. First, these materials could contain privileged attorney-client communications that would lose their protected status if they were available to opposing counsel. Second, and perhaps even more important, unfettered access to source materials as they are stored in the ordinary course of business provides a requesting party with significant amounts of information to which they are simply not entitled. Fishing through these materials could provide an opponent with inappropriate strategic insight, expose proprietary work product, and could even violate privacy statutes. In the context of ESI, because many people use business workstations for a combination of professional and personal work, permitting unrestricted searches of entire hard drives is likely to capture significant amounts of personal information, including passwords, online banking information, personal e-mail messages, and other highly sensitive information.

Courts are mindful that litigants are rarely entitled to direct access to an opponent's discovery documents. As one appellate opinion notes, "Rule 34(a) allows the responding party to search his records to produce the required, relevant data. Rule 34(a) does not give the requesting party the right to conduct the actual search." In re: Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003). Judges also generally require a requesting party to provide relatively strong evidence that the producing party has willfully failed to produce responsive digital information before the Court will consider ordering this level of access. Unintentional mismanagement, so long as it can be cured, is ordinarily not sufficient cause for this relief. E.g., Butler v. Kmart Corp, 2007 WL 2406982, *3 (N.D. Miss. Aug. 18, 2007) ("The plaintiff has produced no evidence demonstrating that Kmart has acted improperly. As such, this court will not provide the plaintiff with unfettered access to Kmart's computer databases.").

This same philosophy is reflected in federal and state Rules of Civil Procedure; the Advisory Committee notes to Amended Fed.R.Civ.P. 34(a) explicitly state, "The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems." Clearly, direct inspection of an opponent's ESI archives is meant to be the exception, not the rule.

Developing Appropriate Remedies

Even with a strong bias against permitting a requesting party to review source data without going through the producing party's counsel, situations can arise in which a court could find clear benefit in having someone other than the producing party assess its source materials, especially ESI repositories such as hard drive images and backup tapes. When such cases occur, though, courts have tried to find the least intrusive method for achieving a fair and just result. Interestingly, the approach taken in two relatively early e-discovery cases has turned out to be a useful model that has been followed many times since the publication of these opinions almost a decade ago.

In the 1999 case of Playboy v. Welles, 60 F.Supp.2d 1050 (S.D. Cal. 1999), the requesting party made a reasonably strong showing that Defendant Welles had potentially relevant deleted ESI on her computer servers that was not available through any alternate source. Plaintiffs sought a forensic bit-level copy of Defendant Welles' computer server in order to search for potentially relevant deleted e-mail messages. Welles, in return, objected to this request because (1) the servers included unrelated sensitive information that would be captured and available to the requesting party through the forensic examination process; and (2) the forensic data harvesting process would disrupt her web-based business, which was conducted primarily out of the server at issue. After weighing the potential value of the evidence on the server against Welles' privacy and business disruption concerns, Magistrate Judge James Stiven permitted the forensic imaging to take place, but ordered that the requesting party's forensic expert serve as a neutral Officer of the Court, with strict limits on what information the expert was permitted to disclose to the requesting party.

Less than a year later, in Simon Property Group v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000), a different court built on the Welles procedures to address concerns about "some troubling discrepancies with respect to defendant's document production." As in Welles, the forensic examination team, though hired by the requesting party, was ordered to perform its work as neutral officers of the court, with significant transparency built into the way that the team would report its results to requesting and producing parties alike. The requesting party would bear the costs of these data harvesting measures, but the team would serve only in a technical role, not as strategic analysts.

Since that time, numerous courts have continued to use these same basic protocols. Ameriwood v. Liberman, 2006 WL 3825291 (E.D.Mo. Dec. 27, 2006), one of the first published opinions analyzing e-discovery under the 2006 amendments to the Federal Rules of Civil Procedure, is only a recent example of opinions that cite Welles and mySimon as models from which a court can craft appropriate protocols for the investigation of inaccessible ESI over the objection of the producing party. Perhaps equally impressive for some, the 2007 Edition of The Sedona Principles: Best Practices, Recommendations, and Principles Addressing Electronic Document Production cites Welles as a primary authority for ways in which courts should appoint neutral experts to resolve e-discovery disputes.

Conclusion

Within the field of electronic discovery, it is rare that legal opinions discussing process and methodology maintain relevance in the face of rapid technology advances. Remarkably, the Welles and mySimon opinions continue to serve as valid reference models for resolving disputes over the adequacy of an electronic document production. However, just as the use of neutral experts to investigate ESI on behalf of a requesting party remains a valid practice, so do the words of Judge Hamilton: "[T]he court believes plaintiff is entitled to look for this material, but in terms of the factors relevant under Rule 26(b)(2)(iii), the court is not convinced that the subject of this very expensive discovery lies at the very heart of the case." mySimon, 194 F.R.D. at 642. In other words, the perceived importance of evidence that could be unearthed through extreme discovery will be an important guide to whether courts will permit inspection of ESI over the objection of the producing party. Practitioners should keep this in mind if they seek extraordinary access to a producing party's archives.