E-Discovery in the US: Overview

Transcription

1 Resource ID: E-Discovery in the US: Overview ANA TAGVORYAN, BLANK ROME LLP, JOSHUA BRIONES, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C., AND BROWNING E. MAREAN (DECEASED), DLA PIPER LLP Search the Resource ID numbers in blue on Practical Law for more. A Practice Note addressing the key issues organizations, individuals, and their counsel must consider to ensure that they comply with their legal duty to produce electronically stored information (ESI) in litigation. This Note specifically addresses parties and non-parties ESI preservation and production obligations and the consequences of failing to meet those duties. Electronic discovery (e-discovery) refers to the exchange of electronically stored information (ESI) as part of the discovery process in civil litigation. The basic legal framework governing a litigant s duty to disclose (and right to receive) ESI is, in many ways, no different from the legal framework governing the disclosure of paper documents. However, e-discovery poses several challenges that are not as prevalent with traditional paper discovery. For example, in today s business environment, the volume of discoverable ESI typically dwarfs the volume of discoverable paper documents. Additionally, figuring out where all potentially relevant ESI resides and devising a strategy to efficiently identify and collect this information requires technological expertise that is not required for paper discovery. This Practice Note Overview addresses the key issues that an individual or organizational party or non-party (collectively referred to in this Overview as a responding party ) and their counsel must consider to ensure that they comply with their legal duties to preserve and produce relevant ESI in litigation. WHAT IS ESI? The Federal Rules of Civil Procedure (FRCP) broadly define ESI to include writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations (FRCP 34(a)). Some obvious forms of ESI include s and attachments, Excel spreadsheets, information stored in databases, and word processing documents such as those created in Microsoft Word. However, there are many other types of ESI that may be less obvious. For example, voic s, text messages, internet history logs, backup tapes, social media profiles and activity, and videos also qualify as ESI. ESI consists of both the: Information displayed on the face of a document, such as the body of the or the typed content of a Microsoft Word document. Document s metadata, such as the document s author and creation date. Counsel may corrupt a document s original metadata when preserving and collecting ESI, but the ESI will have metadata even in that circumstance (albeit unoriginal). The FRCP do not specifically speak to the discoverability of metadata, but some courts have addressed the issue in opinions, local orders, e-discovery guidelines, and the like. Absent an absolute directive from the forum court on metadata, counsel should always negotiate how they will handle metadata in litigation before they engage in e-discovery. COMPARISON TO TRADITIONAL PAPER DISCOVERY Generally, e-discovery proceeds in the same manner as traditional paper discovery. FRCP 26(b) dictates the permissible scope of discovery, limiting it to include only nonprivileged matter[s] that [are] relevant to any party s claim or defense and proportional to the needs of the case[.] The parties: Make any initial disclosures required by FRCP 26(a)(1) (see Standard Document, Initial Disclosures ( )). Request and produce specific documents under FRCP 34 (see Standard Document, Document Requests: Request for the Production of Documents (RFP) ( )). Subpoena documents from non-parties under FRCP 45 (see Practice Note, Subpoenas: Using Subpoenas to Obtain Evidence (Federal) ( )). ESI does, however, present some unique challenges. For example, unlike paper documents: Copying or accessing a particular file can irreversibly alter or destroy ESI metadata.

2 Computer systems may automatically discard or overwrite ESI as part of routine operations. Computers can create ESI without the operator s direction or awareness. Although a user may delete ESI, it: zoften continues to exist in forms that may be difficult to locate, retrieve, or search; and zmay be recovered with the help of a computer forensics expert. ESI may be incomprehensible if separated from the system or software used to create it. WHERE ESI IS LOCATED ESI resides almost everywhere. If a computerized device or service has a memory capacity, it is probably an ESI repository. For example, ESI exists on computer hard drives, telephones (including smart phones), voic systems, tablets, compact discs, floppy disks, thumb drives, and wearable technology. ESI also exists on social media websites such as Facebook, Twitter, Instagram, and LinkedIn, corporate accounts, internet-based accounts, and even the memory chips of digital copiers. Network backup tapes are frequently the largest (and most overlooked) ESI repositories. Organizations often use backup tapes to store copies of their employees ESI for certain periods of time as a safeguard against organization-wide data loss. MANAGING AN ORGANIZATION S INFORMATION IN THE ORDINARY COURSE OF BUSINESS Organizations routinely identify, retain, and dispose of records in the ordinary course of business. It is important for organizations to implement a records management program that: Directs employees how to handle the organization s information. Provides a systematic approach to record preservation and deletion. For more information about records retention, see Records Management Toolkit ( ). BENEFITS OF A RECORDS MANAGEMENT PROGRAM A properly-administered records management program may provide an organization with several significant benefits, such as: Minimizing the high costs of storing and maintaining ESI and other information in the ordinary course of business. An effective records management program enables an organization to dispose of worthless records and free up physical or digital storage space. In turn, the organization can reduce the cost of storing and managing documents (including ESI). Reducing the time and cost involved in locating, collecting, and producing documents (including ESI) in litigation. An organization with a records management program can, for example, more easily determine whether it still has certain corporate documents from a particular time period. Knowing what still exists and where it is stored enables personnel to conduct an efficient search for relevant records. Demonstrating that the organization had a legitimate purpose for destroying ESI and other information. If ESI and other information that are now relevant to a lawsuit or investigation were destroyed by the organization before it reasonably anticipated the lawsuit or investigation (see Duty to Preserve ESI), having an organization-wide records retention program in place may help establish that the organization had a legitimate business purpose for destroying the information. Minimizing exposure to certain legal claims. A records management program can help shield an organization against claims based on old and trivial documents drafted by current or former employees who may not be available or able to recall and provide proper context for the documents (due to fading memories, for example). DESTROYING ESI A comprehensive records management program includes specific procedures for deleting ESI, including: What types of ESI can, should, and must be deleted. When to delete each type of ESI. How to delete each type of ESI. Who is responsible for deleting each type of ESI. Eliminating or deleting ESI is not as simple as it sounds. For example, an employee may delete ESI from a shared drive. If the organization previously backed up the shared drive and a copy of the backup tape remains, the file is still within the organization s possession, custody, or control and may be discoverable in litigation. Similarly, an employee may delete ESI from her laptop computer and empty the Recycling Bin. The file, however, may still exist on the laptop hard drive and be recoverable by computer forensics experts. Accordingly, when developing the deletion elements of its records management program, an organization should involve both: Individuals who are familiar with the various laws and regulations governing records retention. Information technologists who are familiar with all of the organization s data storage practices. DUTY TO PRESERVE ESI Organizations and other potential litigants have a duty to preserve all relevant information (both ESI and hard copy documents) as soon as they know or reasonably anticipate that they will become involved in litigation or a government investigation (see Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001); Orbit One Commc ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 436 (S.D.N.Y. 2010)). The duty to preserve may be triggered in various ways. For example: A plaintiff has a duty to preserve relevant information once it begins to seriously contemplate filing a lawsuit. A defendant has a duty to preserve relevant information: zwhen it has notice of a credible threat of litigation; or zonce it is served with the complaint (if it was not already on notice). A non-party s duty to preserve may be triggered when it receives a subpoena in connection with a pending lawsuit or government investigation. Once an organization has a duty to preserve, counsel should issue a proper litigation hold (see Issuing a Written Litigation Hold). 2

3 Although litigants have a duty to preserve relevant ESI, organizations do not need to search for and preserve every single piece of ESI that might conceivably be relevant to a lawsuit or investigation. Rather, counsel must make a reasonable effort to preserve potentially relevant information (FRCP 37(e)). Accordingly, when developing and executing a preservation plan, counsel should carefully document the: Steps they take to preserve. Any steps they considered but did not take, including the rationale for that decision. Contemporaneous documentation will likely be helpful should counsel later need to defend the reasonableness of the preservation protocol in connection with an ESI spoliation claim. For more information on preservation, see Litigation Hold Toolkit ( ). CONSEQUENCES OF NOT PRESERVING ESI Because of the ever-increasing volume of ESI, perfection in preserving all relevant ESI often is impossible (2015 Advisory Committee Notes to FRCP 37). However, once an organization has a duty to preserve, it may face severe sanctions if it destroys or loses potentially relevant ESI. FRCP 37(e) governs when a court may sanction a party that fails to preserve ESI and authorizes a court to sanction a party for lost ESI only when both: The party failed to take reasonable steps to preserve the ESI. The information cannot be obtained elsewhere. If the court makes both such findings, the court must then determine whether the party intended to destroy the ESI: If the court finds that the party did not intend to destroy the ESI, the court may impose the least severe sanction that will cure the prejudice cause by the ESI loss (FRCP 37(e)(1)). If the court finds that the party intended to deprive another party of the information contained in the ESI, the court may impose the following sanctions: zpresume that the lost information was unfavorable to the party; zinstruct the jury that it may or must presume the information was unfavorable to the party; or zdismiss the action or enter a default judgment. (FRCP 37(e)(2)). COMPLYING WITH THE DUTY TO PRESERVE AND PRODUCE ESI In many cases, organizations cast a wide net to ensure that all potentially relevant ESI (and other information) is preserved so that they can later collect, process, review, and produce it if necessary. However, counsel must keep in mind that FRCP 26(b)(1) limits discovery to that which is proportional to the needs of the case. Accordingly, a party s preservation efforts should be proportional to the case (2015 Advisory Committee Notes to FRCP 37). To avoid disputes about whether a particular preservation protocol is reasonable and proportional, counsel should negotiate the scope of discovery early in the lawsuit (FRCP 1) (see Discovery Conference). Compliance with the duty to preserve and produce ESI (and other information) is a continuing process that involves several steps, including: Identifying ESI and hard copy documents that are within the scope of discovery. Issuing a written litigation hold (see Issuing a Written Litigation Hold). Locating ESI (see Locating ESI). Preserving ESI (see Preserving ESI). Collecting ESI (see Collecting ESI). Processing ESI (see Processing ESI). Reviewing ESI (see Reviewing ESI). Producing ESI (see Producing ESI). ISSUING A WRITTEN LITIGATION HOLD Once an organization has a duty to preserve, it must issue a written litigation hold notice that basically serves as a freeze on the organization s routine record disposal activities (see Standard Document, Litigation Hold Notice ( )).The litigation hold notice should: Describe the types of ESI and other information that the organization must preserve in enough detail that employees can easily identify which information must be retained and which may be discarded under the organization s normal business practices. Be updated and reissued periodically to include any ESI and other information that becomes relevant but may not have been included in previous versions of the hold notice. An organization should issue the litigation hold to: Key players. Information technologists and record managers. Select consultants, agents, and affiliates. Key Players Counsel should communicate directly with employees who are key players in the lawsuit or investigation and clearly advise them of their duty to preserve relevant ESI and other information (see Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, (S.D.N.Y. 2004)). Information Technologists and Record Managers An organization must notify information technology (IT) personnel of litigation holds to ensure that they preserve relevant backup tapes and stop any routine or automated destruction processes that may affect relevant ESI. As a general rule, organizations must preserve backup tapes that are the sole source of relevant ESI, although there is no need to save or search backup tapes when the same ESI is also available from more easily accessible sources (see Margolis v. Dial Corp., 2012 WL , at *3-4 (S.D. Cal. July 3, 2012); see also Coverall N. Am., Inc. v. Verica, L.L.C., 2013 WL , at *11 (D. Neb. May 2, 2013) (the plaintiff was not required to recreate backup tapes where some of the documents sought on the tapes already have been produced); Nycomed U.S. Inc. v. Glenmark Generics Ltd., No. 08-cv-5023, 2010 WL , at *9 n.13 (E.D.N.Y. Aug. 11, 2010)). 3

4 The organization also should notify its record management administrators to ensure that they discontinue any routine processes that could cause the loss of relevant ESI or documents. Consultants, Agents, and Affiliates Parties involved in litigation have a duty to preserve and produce any designated documents and ESI that are under their control, even if that information is in another entity s physical possession (FRCP 34(a) and 45(a)(1)(A)(iii)). A party has control over another entity s documents and ESI if it has the legal right to obtain the information from that entity or if it regularly receives documents and ESI from that entity upon request during the normal course of business (see F.D.I.C. v. McCaffree, 289 F.R.D. 331, 339 (D. Kan. 2012); Nycomed U.S. Inc., 2010 WL , at *7; SEC v. Credit Bancorp. Ltd., 194 F.R.D. 469, 472 (S.D.N.Y. 2000); see also Article, Protecting Foreign Corporations from US Discovery: The Custody or Control Analysis ( )). Accordingly, an organization should issue a litigation hold to related entities if both: The entity maintains ESI or other information that may be relevant to the litigation or investigation. The ESI or other information they maintain is within the organization s possession, custody, or control. For a comprehensive discussion of litigation holds, see Practice Note, Implementing a Litigation Hold ( ). LOCATING ESI Locating all relevant ESI poses one of the biggest logistical challenges for organizations involved in litigation or an investigation. ESI can reside on virtually any electronic medium, ranging from computer hard drives to backup tapes (see Where ESI Is Located). As part of their efforts to locate all relevant ESI, counsel should interview each key employee involved or implicated in the lawsuit or investigation to determine where that employee stores ESI. The organization likely does not know the full extent of an employee s document management habits unless counsel actually speak with the employee. For example, an employee may save ESI on an office computer, home computer, laptop, internet-based account, smartphone, tablet, or portable thumb drives. For an outline of questions to ask an ESI or document custodian, see Standard Document, Data Collection: Document Custodian Interview Questions ( ). Counsel also must work closely with the organization s IT personnel, as key employees may not know where all of their data is stored or may be less than forthcoming regarding the location of their files. Additionally, non-key employees may have relevant ESI and not even know it. In these situations, IT personnel can help locate all potential sources of relevant ESI. Counsel should work with IT personnel to: Create a data map that describes where various types of ESI are located within the organization s network. Determine where relevant ESI is likely to be stored, based on information provided by custodians. Identify a process for preserving and eventually collecting relevant ESI. For an outline of questions to ask an IT professional or records manager, see Standard Document, Data Collection: Locating and Collecting Relevant Data ( ). PRESERVING ESI An organization must take reasonable steps to preserve all potentially relevant ESI and other discovery materials. Both in-house and outside counsel should be intimately involved with the ongoing preservation efforts. In addition to developing and issuing the litigation hold letter, management, IT personnel, and counsel should work together to: Train employees on how to properly preserve ESI and other information. Continually check on and communicate directly with employees to ensure that they comply with the litigation hold and that all relevant ESI is preserved. Closely monitor the organization s records management administrators to ensure that the organization s records retention practices (such as automatic firm-wide disposals) comply with the litigation hold. COLLECTING ESI After identifying and preserving relevant ESI, the organization must collect it. Counsel should be wary of permitting a custodian to selfsearch or self-collect, as such approaches are particularly susceptible to attack. For example, an opposing party may view a self-search and self-collection as inadequate if: The custodian fails to search for reasonable variations of a keyword or neglects to search a broad enough date range. The custodian inadvertently collects data in a manner that damages the ESI s original metadata, such that it can no longer be leveraged by either party for filtering or searching. However, self-search and self-collection may be defensible in some cases. At times, the FRCP 26(b) proportionality analysis supports self-search and self-collection, rather than more costly alternatives like retention of an e-discovery vendor. If counsel opt for selfsearch and self-collection, they should carefully plan, supervise, and document the process to maximize defensibility. Counsel often elect to have the organization s IT staff or an e-discovery vendor collect ESI. Having professional technologists conduct a search or collection ensures the integrity of the processes. If counsel opt to use an outside vendor, they must keep in mind that although vendors can eliminate some of the anxiety of discovery, counsel must still supervise them. The consequences of not preserving (or not taking reasonable steps to preserve) relevant ESI ultimately fall on the organization and its counsel, not the vendor. (See Considerations When Selecting an E-Discovery Vendor Checklist ( ).) PROCESSING ESI Once counsel collect ESI, they can process it. While counsel do not always need to process all collected ESI, processing offers meaningful benefits if counsel: Collected native files. Can use metadata filtering to narrow the universe of ESI that they must review. Intend on reviewing ESI in a document review platform. Plan to produce metadata as part of document productions. 4

5 Processing ESI generally involves extracting metadata from native ESI and extracting (or generating) searchable text. These basic processes enable counsel to: Defensibly eliminate duplicative and irrelevant documents from the universe of ESI that they ultimately host and review in a document review platform (the review set). When filtering the ESI to isolate the review set, counsel can take advantage of common processing functions like: zde-duplication; zde-nisting; and z threading. Efficiently navigate and review the ESI in the review set. If counsel process ESI and then upload the extracted metadata and other processing output to the document review platform, they can: zmore easily view the ESI in the platform; and zsearch and sort the ESI by metadata fields (for example, isolate all s sent by a particular individual in a limited date range). For a more detailed discussion of ESI processing, see Practice Note, E-Discovery: Processing Electronically Stored Information (w ). REVIEWING ESI Once the organization identifies and collects the relevant (and reasonably accessible) ESI, counsel must review that information before producing it to the requesting party. Undertaking a careful and systematic review before production is essential to ensure that the organization does not disclose irrelevant documents, trade secrets, or other commercially sensitive data. A thorough review also helps to ensure that the organization does not waive the attorney-client privilege or work product protection by inadvertently producing privileged or protected documents to the requesting party. Although the FRCP and the Federal Rules of Evidence (FRE) offer safeguards against inadvertent waivers, organizations still risk waiving the privilege or other evidentiary protection if they do not perform any type of privilege review or take other measures to protect against waiving privilege (FRCP 16(b) and 26(b)(5)(B); FRE 502). For more information about protecting against waiving privilege, see Standard Document, FRE 502(d) Order ( ) and Practice Note, Attorney-Client Privilege: Waiving the Privilege: Non-Waiver and Clawback Agreements and Court Orders ( ). Finally, counsel should typically review documents before production so that they: Know what ESI and other information they have produced to their adversary. Can properly prepare for litigation. For various resources on document review, see Document Review and Production in Federal Court Toolkit ( ). PRODUCING ESI Production Format Production format is the manner in which a party produces documents, rather than the substance or content of the production. Common production formats include: Images (for example, searchable or unsearchable PDF). TIFF files accompanied by extracted text files and a load file containing relevant metadata. Native files. Hard copy printouts of electronic files. When selecting a production format, counsel should consider court rules and guidelines regarding production format as well as the needs of the particular case. FRCP 34 and 45 provide that: The requesting party may specify the format in which it wants the responding party to produce responsive ESI (FRCP 34(b)(1)(C) and 45(a)(1)(C)). The responding party may object to the requested format (FRCP 34(b)(2)(D) and 45(d)(2)(B)). If the requesting party does not request a particular a production format, the responding party may produce ESI in a form or forms in which [the ESI] is ordinarily maintained or in a reasonably usable form or forms (FRCP 34(b)(2)(E)(ii) and 45(e)(1)(B)). The responding party does not need to produce ESI in more than one format (FRCP 34(b)(2)(E)(iii) and 45(e)(1)(C)). Many federal courts also have local rules, guidelines, and protocols regarding the format in which parties (or subpoenaed entities) produce ESI. When considering the circumstances of a particular case, counsel should be mindful of proportionality. On some occasions, the cost of producing ESI in a particular format may be disproportionate under the FRCP 26(b)(1) analysis. Organizing ESI for Production Unless the court orders otherwise, a party must either: Produce ESI as it is kept in the usual course of business. Organize and label the ESI to correspond to the categories in the document request or subpoena. (FRCP 34(b)(2)(E)(i).) With respect to ESI, a producing party may only be able to produce ESI as it is kept in the usual course of business by disclosing where it originally stored the ESI. While a producing party may be able to describe such a location (for example, on a particular individual s hard drive in a desktop folder named 2016 Construction Contracts ), it is more common for the producing party to include each file s original file path in the load file that the party includes in its production. Inaccessible ESI An entity producing ESI in response to a document request or subpoena does not need to provide ESI from sources that are not reasonably accessible because of undue burden or cost (for example, backup tapes used solely for disaster recovery purposes may, in some cases, present an undue burden) (FRCP 26(b)(2)(B) and 45(e)(1)(D)). If the requesting party objects and contends that the ESI is reasonably accessible, the entity resisting discovery bears the burden of demonstrating that production from that source would result in undue burden or cost (FRCP 26(b)(2)(B) and 45(e)(1)(D)). 5

6 DISCOVERY CONFERENCE REQUIRED PLANNING Subject to few exceptions, FRCP 26 provides a general meet and confer process that parties follow to address e-discovery and other related issues at the outset of litigation. Specifically, FRCP 26(f) requires that parties meet at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). During this meeting, the parties must discuss any issues about preserving discoverable information and develop a proposed discovery plan. FRCP 26(f)(3) provides additional detail about the discovery plan that the parties must develop during the FRCP 26(f) meeting. In part, the discovery plan must address: The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues (FRCP 26(f)(3)(B)). The disclosure, discovery, or preservation of ESI, including the form or forms in which it should be produced (FRCP 26(f)(3)(C)). Issues related to privilege, including whether the parties desire the entry of a FRE 502(d) order (see FRCP 26(f)(3)(D)). Any other orders that the court should issue under FRCP 16 or 26 (see FRCP 26(f)(3)(F)). Within the 14 days following the FRCP 26(f) meeting, the parties must: Submit a written report outlining the [discovery] plan to the court (see FRCP 26(f)(2)). Disclose certain information, including a copy or a description by category and location of all... electronically stored information... that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment (see FRCP 26(a)(1)). Some courts provide form FRCP 26(f) reports, and others even provide model e-discovery orders, guidelines, or checklists. Such resources help the parties identify the e-discovery-related issues they should discuss. BENEFITS OF ROBUST NEGOTIATION AND PLANNING Many counsel perceive e-discovery as time-consuming, unwieldy, and costly. To minimize the risk of these outcomes, counsel should carefully prepare for the FRCP 26(f) meeting and commit to a robust discussion and negotiation. If properly leveraged, the parties can use the FRCP 26(f) process to: Define the list of subjects on which the parties will conduct discovery. Narrow the relevant time frame for which the parties will conduct discovery. Limit the sources (and custodians) from which counsel must collect, process, review, and produce ESI. Agree on the type of search methodology the parties will use (for example, the parties may agree on a particular predictive coding protocol). Clarify the format in which the parties will produce ESI. For more information about a FRCP 26(f) conference, see Rule 26(f) Conference Checklist ( ) and Standard Document, Rule 26(f) Report and Discovery Plan ( ). BEST PRACTICES TO PRESERVE AND PRODUCE ESI Properly preserving, collecting, processing, reviewing, and producing ESI is not an easy task. In fact, it can be one of the most tedious, time-consuming, and expensive exercises a party undertakes during a lawsuit or government investigation. However, with proper preparation and attention to detail, organizations and their counsel should be able to avoid some of the more common e-discovery pitfalls. Organizations and their counsel should: Implement a document retention policy (see Standard Document, Document Retention Policy ( ) and Practice Note, Information Governance: Establishing a Program and Executing Initial Projects (w )). Issue a litigation hold and cease document and ESI destruction practices once the preservation duty is triggered. Develop a discovery plan at the first sign of impending litigation. Immediately identify key sources of ESI and important file types. Never overlook metadata preservation. The need for metadata impacts how counsel must handle various aspects of e-discovery, including preservation, collection, processing, and production. Avoid ESI self-collection unless the organization has staff who are properly trained in handling digital data. Recognize that deleting ESI from one medium does not necessarily mean that the ESI does not exist on other media. Be aware that the organization s IT department may not be able to shoulder the e-discovery burden alone. Identify and discuss alternative ways of meeting that need, such as counsel s in-house litigation technologist or an e-discovery vendor. If available, use a single document review platform to host and review all hard copy documents and ESI for review. 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