A court has a “gut reaction” based on years of experience as to whether a litigant has complied with its discovery obligations and how hard it worked to comply.
Judge Shira A. Scheindlin, Jan. 15, 2010,
Pension Committee (“Zubulake Revisited”).
“Spoliation.” “Sanctions.” “Scheindlin.” These words have been thrown about by civil litigants with abandon since the U.S. Supreme Court enacted revisions to the Federal Rules of Civil Procedure incorporating rules on discovery of electronically stored information effective December 1, 2006. U.S. District Court Judge Shira Scheindlin’s sanctions orders are used aggressively in an attempt to raise the blood pressure of opponents. The above-quoted language—rarely cited—is perhaps your key to surviving and thriving in the ever-changing world of discovery of electronically stored information (ESI). Judge Scheindlin focuses on hard work as a defense to claims of noncompliance with the rules, and you need to consider what steps you can take to create your record of hard work in this arena.
The purpose of this article is to show you options for proactively navigating through these waters (waters as rough as Lake Superior in November), staying safe, and perhaps using your hard work on e-discovery to your advantage.
Communicate with Your Opponent
The first rule is communication. The courts expect a lot of communication with your opponent on ESI issues. This is hard work in a contentious and uncertain practice area, but your efforts to communicate early in the litigation before issues arise will help place you in Judge Scheindlin’s “hard worker” category.
Remember that Federal Rules of Civil Procedure 26 (f) and 16 codify a judicial desire for communication. In federal cases, parties are required to have a meaningful conference early in the case discussing disclosure and discovery of ESI. You are expected to have a discussion of what information each party has in electronic form, where it resides, steps taken to preserve it, and whether a party has difficulties or faces excessive costs to collect and produce ESI.1
Here is the practical issue with this early meeting: how many lawyers are prepared to share this information freely with opposing counsel before discovery has begun? How many lawyers know their client’s IT infrastructure well enough to discuss it with an opponent at this stage? At a minimum, by this time you should have your client’s litigation hold in place and you should be prepared to advise your opponent of this fact. It is discoverable, although the hold notice itself may not be.2 However, how much additional open disclosure of discoverable information do you provide?
My suggestion is that you enter every rule 26, meet-and-confer (or an initial conference in state court) with a written stipulation in hand. That document should spell out your agreement to produce ESI in a mutually agreeable format (typically in TIF or PDF form), including agreed upon metadata fields and load files. Load files are essential to enabling your opponent’s document management software (such as Summation or Concordance) to upload the documents into a document database (thus, they are “load” files). You need to know what litigation software program your opponent uses, and by learning that, you will be able to produce documents in a “reasonably useable form.”3
Your early, proposed stipulation on the format of production is your tool for opening up the lines of communication with your opponent. In it, offer to produce certain metadata fields, such as “filename,” “datecreated,” and “doctype.” After the initial meeting, document your request for a stipulation in a confirming letter, which you will use later to show the court your efforts to work hard to address ESI issues.
Ask your opponent to agree to submit the stipulation to the court and seek entry of it as a “Protective Order on the Format of Production.” The agreement can but doesn’t need to be extensive. It can address preservation efforts as well as certain types of records and data the parties have agreed to not preserve and produce.4 It can recite various Sedona Principles to which both parties agree to abide. But do see it for what it truly is: communication with your opponent about ESI issues. Use it to show the court that you take seriously your obligations to comply with rules, and, in a contentious discovery case, you will frequently refer to this stipulation (which you authored) and initial confirming letter as evidence of your “hard work” in this complex arena.
Yes, you read that correctly. Produce metadata. I mentioned this above, and I feel so strongly about it that I am detailing my recommendation.
You should understand that the “sender,” “recipient,” “date sent,” and other fields accompanying e-mails are metadata. In addition to these obvious metadata fields, you should agree to produce certain basic metadata fields that accompany your client’s “word” documents, spreadsheets, and other forms of electronic records.
Why? Because your goal is to communicate to the court that your client’s production has been robust. If you produce sufficient metadata, you can create a simple report for the court reflecting the expansive collection of documents (your hard work at collecting documents) that led to a robust production.
Consider this: you can use the file names originally created by your client and given to files when they were created affirmatively. When you produce several thousand pages of records, you can generate a simple, but lengthy spreadsheet with the name of each document produced to show the court the completeness of your production. And, if you produce the “datecreated” field, you can arrange the spreadsheet to show a lengthy historic collection, dating back many years to the earliest “datecreated.” And, if you produce the files’ “doctype” field, you can organize your spreadsheet showing the court that you produced numerous spreadsheets, or a large volume of e-mail messages, or whatever type of document your opponent is claiming you haven’t sufficiently produced.
Make no mistake, metadata can be a helpful tool. It helps you determine, at a glance, if you think your client’s production covers the relevant subject matter categories. And it enables you to create a lengthy spreadsheet to reveal to the court how hard you worked to produce a large volume of electronic records.
Remove the Spoliation Card
The vast volume of written opinions on ESI focus on spoliation and sanctions. Take this “trump” card away from your opponent. What I suggest here takes cooperation and trust on the part of your client. But you need to explain to the client the greater need to remove the spoliation card from your opponent’s arsenal.
I suggest aggressively imaging all locations in your client’s data where relevant records may be kept. This involves imaging a potentially huge amount of data—but consider how it satisfies your client’s duty to preserve. Such a collection shifts the issues on motions away from spoliation to how to find relevant information in that data. This collection of data would be housed safely at your firm, and you would search it and produce relevant documents from it.
It is difficult for businesses and individuals alike to avoid losing data long term, despite the most effective litigation hold, and in nearly every hotly contested litigation, at some point your opponent will threaten a motion to compel ESI. How many times have you heard that your client hasn’t produced records that “must” exist? So look ahead, and use this “total imaging” to head off your opponent’s spoliation claim, the claim that threatens to undermine the merits of your case.
Your client will need to utilize its IT department or use an outside vendor to accomplish imaging of all locations of potentially relevant data. Carefully document those efforts. Image the hard drives of key players, their e-mail boxes (including user folders), their personal and shared drives on the server, as well as all other locations of potentially relevant data sources.
The upside of this effort is significant. On any motion claiming you “must” have records you’ve not produced, the focus will be on the reasonableness of your searching of that data. You effectively preclude the spoliation claim and with it the risk of spoliation sanctions. Spoliation sanctions devastate jury instructions and can be personally and monetarily significant as well. You and your client’s efforts to capture all locations of relevant data will place you squarely in the realm of Judge Scheindlin’s category of litigants who work hard to comply with e-discovery rules.
Prepare Your Client for ESI Depositions
Depositions of records collectors and IT personnel in significant exposure cases are now commonplace. Accept it and prepare for it from day one. Discuss records collection with your clients and advise them to expect those deposition notices. Identify both a document control employee and an IT witness who will be personally involved in records and data collections. Advise these employees from the outset of their need to testify and the importance of that testimony to your client’s case.
Remember that your opponent uses service of these deposition notices to strike fear in the hearts of your client’s employees, and if employees are not properly prepared for these notices, those anxieties are, in fact, a reality. You have the ability to control these anxieties by preparing your client and these witnesses with full awareness of the need to testify about the records collection process.
Advise them that “when” they are deposed, they will need to testify about the steps they took to collect the records. Make sure they document the steps they take, which will enable them to testify comfortably and accurately later on. There are no secrets about the subject matter of these depositions. Your opponent will ask these witnesses the basic foundational “who, what, when, where, and why” questions about what they collected and sent to outside counsel. So by the time you produce documents collected by the client, these employees should have heard from you many times about the status of their collection process, and that they need to be prepared to testify about the hard work they put into effectively collecting records.
Get to know your client’s IT witness. Educate yourself about your client’s systems through this person. He or she should be included on the litigation hold “team.” Use this person to ensure that automatic delete functions do not inadvertently destroy records. 5 Advise this person that hard work is expected to make sure that the company complies with the litigation hold. This witness collects the data from which you will produce documents. Discuss the need to image the locations of relevant data promptly after initiation of the hold without changing the records collected or their metadata. Finally, get this person comfortable in the witness chair. Remind this witness that he or she knows far more about your client’s IT systems than any lawyer who takes the deposition, and that the questions asked will, indeed, be focused on subjects well known to the witness.
Through these efforts, you are effectively preparing your records collectors for their eventual depositions from day one. You will reduce their anxiety and increase their ability to tell the good history of their efforts. You will reduce the level of “fear” in your opponent’s fear tactic, and when asked for those depositions, your positive response and willingness to produce them for depositions will give your opponent pause. The opposing lawyer will soon realize that all that will be gained is a good, careful history about how hard your client worked to preserve and collect relevant records.
Use Appropriate and Focused Keyword Searches
In 2007, the Sedona Conference observed the following about the difficulties of locating relevant documents through keyword searching:
Keyword searches work best when the legal inquiry is focused on finding particular documents and when the use of language is relatively predictable. … simple keyword searches end up being both over- and under-inclusive in light of the inherent malleability and ambiguity of spoken and written English (as well as all other languages). 6
Keyword searches identify all documents containing a specified term regardless of context, and so they can possibly capture many documents irrelevant to the user’s query. … The problem of the relative percentage of “false positive” hits or noise in the data is potentially huge, amounting in some cases to huge numbers of files which must be searched to find responsive documents.
The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-discovery, Sedona Conference Journal, Vol. 8, Fall 2007, at 201–02.
I do not intend to suggest that keyword searching should not be conducted. On the contrary, the Sedona Conference published a 2009 Commentary spelling out the expectation that parties should cooperate on the selection of appropriate keywords to search and locate relevant records.7
The message here is that many battles are fought over keyword searching. You will likely be served with a lengthy list of keywords to run on your client’s data. Such a lengthy list is not likely focused on finding particular documents. If a mutually agreeable list of terms cannot be determined, proceed with running the searches best suited to locate relevant documents, document your efforts, and prepare to show the court the reasonableness of your searches and the lack of value of your opponent’s overbroad and lengthy list. Be prepared to share the expense of your work with the court. Reviewing documents retrieved by keyword searching is extremely expensive, both from an IT perspective and in attorney review fees. Use your keyword searching history to show the court that you worked hard using an appropriate list of keyword terms to locate relevant documents housed within your client’s data. You will be well on your way to making Judge Scheindlin’s “hard worker” list.
Use the Sedona Cooperation Proclamation Affirmatively
Often your opponents will threaten sanctions and motions to compel, claiming any number of violations on your part. You know you’ve worked hard and your productions have been robust, but you will run into opponents in this arena who seem more intent on bringing you in front of the judge than in finding new, relevant evidence. Use the Sedona Conference Cooperation Proclamation to your advantage here.
The first paragraph of the proclamation reveals a judicial expectation of cooperative efforts in e-discovery:
The costs associated with adversarial conduct in pretrial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (ESI). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes—in some cases precluding adjudication on the merits altogether—when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes.
The Sedona Conference Cooperation Proclamation, July 2008.
As of September 30, 2010, 114 state and federal court judges representing 29 states and the District of Columbia have signed on to this proclamation. The Sedona Conference is intent on promoting cooperative efforts to discover ESI, in contrast to your opponent’s approach. The Sedona Conference seemed to address the same concerns expressed by Judge Scheindlin:
Finally, I note the risk that sanctions motions, which are very, very time consuming, distracting, and expensive for the parties and the court, will be increasingly sought by litigants. This, too, is not a good thing. For this reason alone, the most careful consideration should be given before a court finds that a party has violated its duty to comply with discovery obligations and deserves to be sanctioned.
Judge Shira A. Scheindlin, Jan. 15, 2010, Pension Committee (“Zubulake Revisited”).
Use the proclamation (and Judge Scheindlin’s words) proactively. When served with unreasonable e-discovery demands, in the course of conferences with your opponent in an effort to resolve the dispute, send your opponent a copy of the Proclamation. Use it to educate your judge, particularly those not yet experienced in complex e-discovery issues. Show that the judiciary expects cooperation, not adversity. Your judge, even an inexperienced e-discovery court, will understand that adversaries frequently use ESI to needlessly raise issues and seek to place an unreasonable burden on the litigation. Courts frown on outrageously burdensome requests not designed to locate new, relevant, and undiscovered information. Use the proclamation to help you show the court the true nature of your opponent’s demands.
Discover Your Opponent’s E-mails and Social Network Records
Individuals who place their quality of life at issue are subject to discovery of their personal e-mails and social network pages. Recently emerging law in this area, though not yet addressed in Minnesota, supports such discovery.
Many courts that have addressed the issue of social media discovery have found the information contained on such sites relevant to the issues in the case and have ordered its production.8
Plaintiffs who claim personal injury, including damages to their physical and emotional condition, may have relevant or discoverable information on their social media pages and in e-mails reflecting evidence of their physical and emotional condition. Be sure you consider and properly request your opponent’s data as well.
Stop fearing ESI. Treat data collection and production the same for both paper and electronic records. What is relevant and where is it? Communicate with your opponent, produce a robust set of records (including metadata), prepare your client for eventual e-discovery depositions, and document your hard work. Always keep in mind that you need to show the court that, despite your opponent’s claims, you’ve worked hard to comply with your discovery obligations. If you don’t work hard, it will haunt you. But if you do, you will find yourself far more comfortable standing before the court presenting a nice, lengthy dissertation describing the hard work that went into your client’s productions. Let our reasonable Minnesota jurists put a stop to your opponent’s tactics.
1 For an excellent discussion on the court’s expectations for this conference, see the section entitled “Early Consideration of ESI—Rules 26(f) and 16” in Managing Discovery of Electronic Information: A Pocket Guide for Judges, Federal Judicial Center, 2007.
2 See In re New York Renu with Moistureloc Product Liability Litigation, 2008 WL 2338552 (D. S.C. 2008) (precluding disclosure of the litigation hold notice as privileged and protected work product).
3 See Fed. R. Civ. P. 34.
4 See, e.g., Sedona Principles for Electronic Document Production, Second Ed., ¶9 (“Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.”).
5 See Fed. R. Civ. P. 37(e) FAILURE TO PROVIDE ELECTRONICALLY STORED INFORMATION. “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”
6 Some case law has held that keyword searches were either incomplete or over inclusive. see Alexander v. FBI, supra, n.18; Quinby v. WestLB, AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006).
7 The Sedona Conference Working Group Series: The Sedona Conference Commentary on Achieving Quality in the E-discovery Process,” May 2009.
8 See, e.g., Romano v. Steelcase, Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010) (requiring the plaintiff to provide authorization for Facebook and MySpace to produce entire pages, both live and deleted pages, regardless of privacy settings); McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson Cty., PA, Sept. 9, 2010) (requiring the plaintiff to produce all Facebook and MySpace information within 15 days and shall not delete or alter existing information and posts on his social media accounts); and Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009)(ordering production of entire Facebook account to defendant for review, regardless of privacy setting).