Most of the commentary and guidance about how to best work with electronically stored information (“ESI”) in civil litigation has focused on disputes involving voluminous document collections. In such matters, clients expect that significant work will be required to prepare discovery materials for production, and they incorporate these costs in their litigation budget.
However, many smaller legal disputes also involve electronic evidence, even though the amounts in controversy may be much smaller and fewer relevant electronic documents may exist. Divorce proceedings and child custody disputes routinely include an analysis of both parents’ e-mail messages and web browsing histories. Criminal cases routinely require review of not only cell phone call records, but also SMS and e-mail exchanges. Clearly, these evidentiary materials often contain highly relevant information. However, smaller matters have only a fraction of the budget that larger cases do, and many practitioners are concerned that they lack the resources to adequately work with ESI in these circumstances. How should they proceed?
In the past year, a number of diverse voices have called for a renewed examination of the effectiveness of civil discovery. On March 11, 2009, for example, the American College of Trial Lawyers, in partnership with the Institute for the Advancement of the American Legal System, released the Final Report of its Task Force on Discovery. The report was sharply critical of common discovery practices:
We now have a system of discovery in which parties are entitled to discover all facts, without limit, unless and until courts call a halt, which they rarely do. As a result, in the words of one respondent, discovery has become an end in itself and we routinely have “discovery about discovery.” Report at 16.
In the eyes of the Task Force, these activities are “crippling our civil justice system.” Report at 12.
One corrective measure proposed by the Task Force Report requires no new rules. Instead, the Report advocates much greater use of the proportionality provisions already present in state and federal rules of civil procedure, stating, “Proportionality should be the most important principle applied to all discovery.” Id.
For litigators handling smaller disputes, proportionality is critical for managing discovery. The “reasonableness” standard articulated by rules of civil procedure is deliberately open-ended and is meant to permit different results in different situations. A lawsuit worth $20,000 simply does not merit the same amount of fact discovery as a dispute involving $20,000,000. Many practitioners, however, fail to adequately educate the judge as to the true costs of the discovery being requested. Without such supporting evidence, presented in a manner that is both well-supported and easy to understand, judges may not fully understand when a discovery request is disproportionate to the size of the case or the specific issue being litigated. Understanding and communicating these costs is a vital part of small-case e-discovery.
Certain types of smaller litigation matters can trigger the potential for over-sized electronic discovery, of course. Employment disputes like the one memorialized in the Zubulake litigation (i.e., Zubulake v. UBS Warburg LLC, 17 F.R.D. 309 (S.D.N.Y. 2003) (the first of five opinions in that case specifically discussing the need to preserve and produce e-mail messages stored in active data and on backup tapes)) may potentially involve the preservation and recovery of e-mail messages residing on a large array of storage media. In such cases, as part of a proportional discovery response, litigants should be encouraged to implement a rolling document production in which specific findings of relevance in a subset of potentially relevant documents will trigger additional document review and production obligations. Indeed, this is one of the principles that guided discovery in the Zubulake case, where samples taken from the collection were tested for the existence of responsive documents, with further discovery orders driven by the results of that testing.
One of the challenges of working with ESI in litigation discovery is that relevant digital information may be inadvertently altered or even deleted before it can be harvested as evidence by the legal team. That same concern exists whether the information sits on a single laptop computer or a corporate network containing hundreds of computers and multiple file servers. After all, if this information is lost, potentially key evidence will never be located—and the party that lost the information may be sharply penalized for its failure to safeguard these materials.
Preservation is thus an essential part of working with ESI in any legal dispute, but the potential cost and business disruption associated with this process is often a particular concern in smaller matters. However, for these litigants, some relief may be found in strategies that aren’t necessarily appropriate in larger cases but that could well be a good fit in smaller disputes. As one example, in many cases, to ensure that no data is lost and to minimize the time that computer is removed from service, legal teams generally engage trained forensic technicians to create bit-level copies of hard drives and electronic repositories. The cost to have such images created is often only a few hundred dollars per computer, but if the matter involves more than one or two computers, even that relatively modest cost can quickly eat into a tight litigation budget.
One possible alternative when this level of total data preservation is required in a smaller matter is to avoid using a forensic data capture service and instead simply remove the original hard drives from the computers, tagging these originals, not copies, as evidence. To the extent that the computers need to be returned to service, an I.T. technician can use a non-forensic utility like Norton Ghost™ to copy active data from the original drive to a new hard drive that is placed back in the computer. Because salaried internal I.T. staff can be used for this procedure, this process may have sharply lower out of pocket costs (albeit with some potential complications in establishing a completely bullet-proof chain of custody). However, that risk may be outweighed by benefits of this approach. From the end-user perspective, this procedure is quite effective because the user loses no active data, the computer functions precisely as it did before, and the computer was unavailable for only a few hours. From the corporate law department perspective, this process is appealing because it can be documented and performed in a relatively defensible and reproducible way. Equally important, it reduces pressure on the litigation budget. Finally, from an outside counsel perspective, this process protects essential data from inadvertent loss, and the original hard drive remains secure and available in the event further analysis is required.
Small-budget disputes challenge lawyers to find creative and cost-effective solutions for all phases of the litigation lifecycle. Not surprisingly, thoughtful strategic decisions, especially in discovery, can yield some of the largest cost savings. For example, though technology plays an important role in the preservation—and inadvertent destruction—of ESI, the most important way to reduce preservation costs requires no technology at all.
In both large and small matters alike, a producing party may significantly reduce the scope of a legal hold by engaging proactively with the requesting party to better understand and identify the specific information they are seeking. Such discussion is now required in cases proceeding under the Federal Rules of Civil Procedure, but many smaller cases are brought in state courts, where such action is often optional. No matter where a case is filed, though, this strategy can yield great benefits for both producing and requesting parties. For example, imposing a blanket legal hold on broad topics or categories of documents all but guarantees substantial expense, the very real danger of inadvertent destruction of materials falling under the hold, and valid challenges by the producing party regarding the scope of requested discovery. In contrast, basic agreements like date range restrictions may make it possible to greatly focus a legal hold, releasing large amounts of ESI and even entire computers or repositories from legal limbo. Litigants requesting documents also benefit from a targeted legal hold, as they receive a discovery documents much more likely to be deeply relevant to the dispute, saving them time and money in their own post-production document review.
Another conversation that can significantly impact the total cost of discovery is the extent to which a requesting party’s requests can be satisfied with active electronic data—that is, files currently stored and seen on a computer hard drive—or whether the litigant believes that deleted files must also be included. It’s important to speak explicitly about this, not only to establish the boundaries of a litigant’s preservation obligations, but also because an increasing number of judges are shifting the cost of preserving deleted information to the requesting party. For a case on a tight budget, that can make a noticeable difference for litigants on both sides of the dispute.
Litigation matters have evolved well past the days when opposing counsel could mutually agree not to request e-mail messages and electronically stored documents in an effort to hold down expenses and simplify discovery. With so much information created and stored electronically today, even simple matters may involve chiefly, if not entirely, electronic evidence. Ignoring such evidence may be affirmative malpractice by an attorney, regardless of the size of the dispute. However, a strategy of analyzing the extent to which ESI contains relevant information and thinking creatively about ways to obtain this information at modest cost isn’t far-fetched at all, nor should it be beyond the reach of any counsel. Indeed, once they are fully educated about these topics, lawyers may find it’s actually easier—and ultimately cheaper for their clients—to address electronic discovery issues head-on instead of waiting until the last possible moment in hopes that these issues will resolve themselves or become moot.