Robert Alan Eisenberg is a Principal in the Discovery Services Practice Group in the
Washington D.C. office of Peterson Consulting. Mr. Eisenberg has over 25 years experience in the practice of law and the rendering of consultative services relating to electronic discovery, computer forensics, electronic data retention and traditional paper-based litigation support services.
The predominance of data in electronic form – approximately 93% of documentation is generated in digital format of which, at least, 70% is never printed – can serve to level the playing field when under-funded and often out-manned plaintiff meets deep-pocket, copiously supported defendant. The existence of a massive volume of potentially discoverable relevant material provides a potent opportunity (as well as a challenge) to the undaunted plaintiff’s counsel. The existence of contemporaneous and spontaneous electronic communications and digital “smoking guns” can be used as enormous leverage for the aggressive and savvy practitioner. Indeed, occasionally, as a result of the failure of a defendant-respondent to anticipate the rigors and pitfalls of a discovery process that is significantly different than paper-based “traditional” discovery, the fact is – “The Bigger They Are, The Harder They Fall.”
However, in the territory of the “smoking guns”, plaintiff’s counsel will find that she or he will be compelled to choose between the roles of Homesteader or Gunslinger in the effort to maximize the collection of discoverable electronic evidence.
As is commonly understood, The Homesteader is a solid, established member of a community, with a hearth and home to protect and family that relies on his or her balanced judgment and proclivity to maintain the peace. The Homesteader has roots, is risk-adverse and worries about severe and unanticipated damage to the status quo.
On the other hand, The Gunslinger is unfettered. He rides into town – traveling light – his horse, his Colt Six-Shooter and his Winchester Rifle, practically all he has of value in the world. No family, no farm, no bond to the land or the good citizenry of the town in which he has decided to stop; to swagger through swinging doors and sit at the bar of the local saloon; palaver with the patrons; buy a couple of “rounds” for the “house”; and “sit in”, testing his luck in the saloon’s perpetual poker game. Sometimes he must be bold to maintain his reputation. He lives by his well-honed instincts and, by making the correct inquiries and keeping his ears open and mind focused, can size up the competition and sense when an adversary is woefully unprepared. And when required, he’s quick to react, his gun hand dropping reflexively to the pistol in its tied-down, low-slung holster – for he craves action and his risk is limited – and he’s “The Gunslinger.”
Such a person can afford to cast aside some inhibitions.
And plaintiff’s counsel, as the requester in the discovery process, can be (and occasionally must be, in the effort to “level the playing field”) The Gunslinger (minus the gun, of course.)1
When there is a respondent with great volumes of potentially discoverable electronic evidence and counsel is representing a plaintiff-requester with nominal data stores (being an (a) individual (b) employee (c) small business entity (d) some regulatory agencies or (e) the plaintiff class in most class actions) an aggressive stance in seeking discovery is often the best practice. For a reciprocal broad-based demand for production of digital evidence from defendant is unlikely and, accordingly, an unintimidating prospect (of course, the requester may still have to dodge the “return fire” of claims of undue burden and skewed proportionality and demands for cost-shifting.) Even in the event of a retaliatory demand, the end result will be an exercise in futility and, conceivably, serve to antagonize the court toward the defendant.
But here’s the catch. This Gunslinger must wear a white hat, never a black one (think Jimmy Stewart not Jack Palance in those old movie “Westerns.”)
For a reasonable and common sense approach must also be displayed by the The Gunslinger, lest the court go “gunning” for the Gunslinger himself, as a perpetrator of an egregious effort to harass and intimidate the respondent into settlement negotiations by the use of overly-broad, “scatter-gun” tactics in demanding the production of discoverable material.
The best practices for the practitioner in the guise of The Gunslinger are to:
- Serve upon the defendant, at the time of service of the complaint, a well-crafted and comprehensive Demand for the Preservation of Electronic Evidence.
- Move the court, at an early stage, for an ex parte data preservation order, forbidding deletion of e-mail and other computerized information by the adversary pending discovery and setting forth proposed protocols for the preservation, collection and production of responsive material.
- Take early FRCP 30 (b) (6) depositions of key IT and Records Management personnel (since depositions are barred prior to the commencement of formal discovery, you will need the court’s permission in order to proceed in the federal system.) Use the deposition to probe defendant’s retention policies (or lack thereof) relating to standard electronic files as well as E-mail (both E-mail use and retention protocols), as leverage to counteract cost shifting and other avoidance strategies of defendant, while gathering “ammunition” for spoliation sanctions and gauging the extent to which the respondent has permitted the reckless retention of potentially incriminating E-mail.
- Overall, be aggressive and thorough in the discovery of electronic data. In order to be aggressive, counsel should be “armed’ with the following information:
- Knowledge of methods to prevent or limit deletion of data by the adversary, pending discovery; understanding the type of “tailored” or “creative” spoliation sanctions that may be accepted by the court, etc;
- Knowledge of issues surrounding “cost shifting” and the sharing of costs required to locate and retrieve data;
- Knowledge of both technical and legal elements of the subject of the spoliation of electronic evidence, i.e. understanding the manner in which data’s integrity is corrupted in the course of collection electronic evidence;
- Knowledge of strategies involving the use of on-site inspections of respondent’s computer systems;
- Knowledge of the range of challenges to the scope of data collection – i.e. have the proper people been targeted for collection of responsive data, were collection methodologies sufficient, etc.;
- Knowledge of the most advantageous forms in which to receive production of a respondent’s data;
- Knowledge of issues that arise concerning the inadvertent disclosure or production of privileged electronic evidence;
- Knowledge of the manner in which to use as leverage the criminal penalties for destruction of records contained in the Sarbanes-Oxley Act of 2002; and
- The optimum technique to utilize in the retrieval of, specifically, E-mail and attachments from respondent’s backup tapes and make responsive data available.
As noted, all such strategies should be executed while The Gunslinger’s conduct is marked by standards of reason and common sense.
And how does The Gunslinger, that avatar of hair-trigger action, accomplish this? It is a matter of recognizing that the leavening of reasonableness (and the perception of reasonableness) can increase the effectiveness of an aggressive stance. What may be required, is to proactively encourage respondent’s counsel to commit to a regimen of discovery that is comprehensive and actively participatory, while maintaining an assertive, even confrontational, posture in the effort to best serve the plaintiff by maximizing the pool of potentially responsive data to be produced by the respondent. It is here submitted, that there exists, in fact, no inconsistency in this “double-barrel” approach to discovery.
Accordingly, while adhering to the strategy of dynamic discovery enumerated in the preceding sub-paragraphs, the requester’s counsel should consider:
- Seeking “Meet-and-Confer” opportunities with respondent’s counsel to develop discovery protocols that are not unacceptably disruptive to respondent’s business, while both fully preserving data and creating a sufficiently expansive pool of potentially discoverable electronic evidence.
- Discussing the usefulness of performing a cost-benefit statistical analysis of data on backup tapes or other archival or legacy storage media in an effort to streamline the data to be recovered from problematic data stores and control costs (and as a method of creating leverage to avoid cost-shifting from respondent to requester.)
- Offering to enter into a non-waiver of privilege agreement in order to protect the parties from the inadvertent waiver of privileged or otherwise protected electronic evidence (be aware of the caveat that such an agreement, even sanctified by the court in a formal non-waiver order, may not provide protection from inadvertent disclosure, under all circumstances, in all jurisdictions, including within the federal system.2) This agreement can constitute an effective instrument to expedite and reduce the cost of review and production, by providing protection from self-inflicted injury as the result of the unintended (and possibly case-critical) production of otherwise protected responsive data.
- Offering to share the cost of retaining an electronic discovery independent consultant to act as an arbiter to aid in the development of a mutually agreeable electronic discovery plan and settle disputes (the intercession of a neutral third-party will, most likely, be appreciated by the court and result in savings in the long-term expense of e-discovery.)
The Gunslinger also must remain cognizant of the vulnerability of an adversary laboring under the strategic weakness of a poorly conceived, haphazard or even chaotic electronic document retention policy. If the respondent has not developed a well-designed and effective system of data retention or has a reasonable system in place but suffers from inadequate and unaudited employee support of the policy with inevitable loss of potentially critical data, than the adversary may find itself involved in a High Noon Showdown with The Gunslinger with a gun that will explode in its face. For there may be more advantage for the requester in the inability of the respondent to produce discoverable data, than disadvantage arising from the failure to obtain potentially relevant material. The risks of the imposition by the court of severe sanctions for spoliation of data (which can include an adverse inference or significant monetary fines) are very real and the pressure to resolve the matter rather than litigate or to accommodate the requester in a manner disadvantageous to the respondent may come to loom large.3
The Gunslinger may also want to consider raising a tactic, in a preemptive gambit, that is normally an aspect of the respondent’s strategy to limit business interference, restrict discovery, reduce costs of production and slow momentum to early resolution. This is the “Safe Harbor” scenario. An “Order Regarding Document Preservation”, handed down in mid-September of 2002, in Andrea Savaglio, et. al vs. Wal-Mart Stores, Inc, et al, Case No. C-835678-7 (Calf. Super. Ct. 2002) incorporates the use of the Safe Harbor concept as carrot and stick. Safe Harbor provisions permit a respondent to adhere to its established and routine document retention policy, including the rotation protocols it has promulgated for the creation, rotation and destruction of archival data, so long as the party adheres faithfully to a regime of preservation rules established to protect data relevant to the litigation from spoliation. Savaglio creates rigorous strictures to monitor and document the defendant’s adherence to a preservation policy as a strict perquisite for the survival of its Safe Harbor. It may be in the requester’s best interest to raise the issue of such a sanctuary early in the proceedings to construct a harbor more to its liking and in conformity with a mind set marked by reason and common sense.
On the other hand, The Homesteader-Requester, with its own exposure to risk, must adhere to a digital discovery strategy that is similar to the respondent’s and unlike the Gunslinger’s (in this scenario, the Homesteader is a business of some substance.) The Homesteader’s approach may consist of:
- Serve upon the defendant-respondent, at the time of service of the complaint, a well-crafted and comprehensive Demand for the Preservation of Electronic Evidence.4
- Cooperation through an emphasis upon Meet-and-Confer sessions, wherein a discovery plan is fashioned. Both parties should take full advantage of the conciliatory aspects of “Mandatory Initial Disclosures” made under Rule 26 (a) (1) of the Federal Rules, as well as the Discovery Conference and Pretrial Conference under Federal Rules of Civil Procedure 26 (f) and 16 (c), respectively. The parties should labor, at an early stage, toward the submission to the court of a Joint Proposed Order establishing protocols to clarify the nature of the data universe at issue, the manner of processing and production of data, and the specific responsibilities of the parties (including a “Safe Harbor” provision where deemed advantageous.)
- Use of a Special Master under Rule 53 of the FRCP to mediate disputes.
- Use of mutually appointed neutral third party to oversee collection, processing and production of data.
- Prior to the litigation, the development of a comprehensively structured and fully implemented (with quality controls and compliance audits) data retention plan and E-mail use and retention protocols. The plan should include data “quarantine and hold” provisions to meet the exigencies of litigation and the demands of regulatory compliance.
Subparagraph “5” above, is the most important long-term factor for the Plaintiff-Homesteader (and, in deed, the respondent, as well.) For, the development and full execution of an effective data retention policy, will give the strategic advantage to the party who has such a risk management plan in place and leave the party without such a policy at a marked disadvantage. The Homesteader, on the farm, with such an edge, can, consider, in conjunction with the more accommodating approach set forth above, the use of some of the aggressive and confrontational strategies of The Gunslinger, in the bar. In fact, The Homesteader-Requester may consider strapping on a Gunslinger’s holster and joining his less inhibited brethren in a High Noon Showdown.
Even without an advantage, The Homesteader could, while seeking the accommodating route, utilize some aspects of The Gunslinger’s more aggressive discovery strategy (moving quickly for ex parte order, seeking early depositions of knowledgeable employees and maintaining a more aggressive stance in seeking discovery.) However, where The Gunslinger emphasizes the dynamic stance over the more conciliatory approach, The Homesteader, subject to reciprocal assault on its own data stores and with no particular advantage, should emphasize the conciliatory over the dynamic.
1 For purposes of this essay, the terms “Plaintiff”, “Requester”, “The Gunslinger” and” The Homesteader” are used interchangeably and each represent the same entity in different guises – the proponent of discovery. The terms “Defendant” and “Respondent” are interchangeable as well, representing the party upon which demand is made. <back to text>2 For further discussion of this topic see: “Inadvertent Disclosure of Privileged Information and the Law of Mistake: Using Substantive Legal Principles to Guide Ethical Decision Making,” 48 Emory L.J. 1255 (1999) <back to text>3For further discussion of retention policies, see: “Preparing for the Inevitable: Discovery of Electronic Records in Litigation,” Daniel I. Prywes, Volume 31, Number 6, August 2000. Copyright 2000 Computer Law Reporter, Inc. <back to text>4 The forwarding of this letter is an indispensable step for both parties to a litigation, in whatever guise, for purposes of securing the vital electronic evidence held by the adversary from willful and (more likely) inadvertent loss and to demonstrate to the Court both the sender’s conscientious behavior and the recipient’s lack thereof. <back to text>