Mark Shem, SCCBA Immediate Past President, Guest Author
Thanks to President Mindy Morton for allowing me to report to you on the results of the e-Discovery Task Force. In 2010, the e-Discovery Task Force was created to demystify electronic discovery by providing practical knowledge and resources to all members of the Santa Clara County Bar Association to address the handling of electronically stored information in discovery. In 2011, the Task Force presented a series of seminars examining e-Discovery from the basics to application in certain fields of the law. These seminars are available as on line videos on the SCCBA website at CLE>>>On Line CLE. The Santa Clara County Bar Association’s Board of Trustees accepted the Task Force’s final report at its December, 2011 meeting. What follows is a summary of the Task Force’s findings and recommendations.
Unfortunately, discovery of electronically stored information is marked by FUD - fear, uncertainty and doubt as technology attorneys and vendors toss around words and concepts that most of the rest of us don’t understand. For the prior hundred years, the only way to understand recorded information was to read words or see pictures preserved physically (on paper) or listen to voices on vinyl recordings. Everyone used the exact same technology to create, manage and store this recorded information. The adoption of new technology took place very slowly. There were uniform standards regarding the media and technology, such that everyone used the exact same tools and techniques to create, access and store the information. The only essential difference between one litigant’s system and another’s was: how well did they organize and manage their filing system? The lawyer’s inquiry was limited to: 1) did they keep what we needed, 2) what language and alphabet did they use, and 3) how hard will it be to copy? The lawyers involved used essentially the same system to keep their own information, and as such had a clear and fundamental understanding of how the litigant's kept their information. For lawyers, the medium of exchange was primarily ‘documents’ (which were improperly viewed as synonymous with ‘paper’) and a whole underclass of other ‘things,’ as discussed above.
Today we still communicate in the same fundamental way. We read words, look at pictures and listen to voices. The e-Discovery problem arises from the myriad ways we can create, convey, manage and store B record, if you will, that information electronically. There are thousands of systems, hundreds of standards, and thousands of media devices in vogue, with more coming into play every day. As new systems come online, old systems drop off, but we are plagued with the problem of the volume of recent information recorded, and still held in those legacy systems. My system as a lawyer is decidedly different than my client's, my opposing counsel's and my opposing party's system.
Fortunately, when you get down to the blocking and tackling, not much really has changed. There are common underpinnings about the media that can be learned and understood. Once you get past the core information-media problem, we are faced with the exact same issues we have always faced. The lesson to learn is: any lawyer litigating today must make an effort at the start of every case to gain a basic understanding of how the client creates, conveys, stores, manages and disposes of information using electronic systems.
PHILOSOPHY TOWARDS E-DISCOVERY
The Task Force adopted the following as a statement of philosophy for development of continuing legal education programs.
Discovery is discovery is discovery. The laws of discovery did not change with the onset of e-Discovery. The information you are seeking still has to be relevant, can’t be overbroad, and the burdensome objection still goes through a balancing test. The only change really is (1) how the information is stored, (2) where it is stored, (3) how to retrieve it, (4) cost benefit analysis on the expense for the retrieval, and (5) who has to pay for it.
SUMMARY OF BEST PRACTICES FROM THE SEMINARS
The Task Force did not want to recommend the adoption of any practices regarding e-Discovery. There are many organizations, including the Sedona Conference, which have invested much time, energy and resources towards e-Discovery. Rather, through these seminars, the Task Force identified best practice ideas which the practitioner should consider when faced with e-Discovery issues. Those recommendations of best practices are as follows:
1. E-Discovery is the same as the discovery we have all been doing. You still have an obligation in good faith to respond to the discovery requests. You still have to do a "diligent search" and make a "reasonable inquiry". However now you are looking into electronic file cabinets such as desktops, laptops, servers, the "cloud", smart phones, I-pads and other tablets to get the information.
2. Because there is more capacity to hold more data in electronic file cabinets, the requests must be strictly tailored. (i.e., your request can't say "All e-mails from 1/1/2005 to the present" as the production could be hundreds of thousands of e-mails. Instead your request should say "All e-mails between X and Y regarding [specific topic]."
3. Work cooperatively with opposing counsel to resolve e-discovery disputes so that theydon’t need to be tendered to the court. The parties are in the best position to agree on a reasonable e-discovery plan, proportionate to the needs of the case. The Courts may lack the time and/or technical expertise to adjudicate e-discovery disputes and you may not be happy with the Court’s orders.
4. Don’t lose sight of your end-game -- case resolution. Keep your case moving toward resolution through motion, settlement or trial. Don’t get sidetracked by collateral e-discovery disputes. The Sedona Conference, in its July 2008 Cooperation Proclamation, observed: "The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information. 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 . . . ." Don’t let that happen to you!
5. Meet and confer with opposing counsel about e-discovery issues early in the case, well before documents are produced. You should discuss, among other things, what databases are and are not reasonably accessible, what search criteria should be employed and what form should the documents be produced. If you cannot agree on a reasonable e-discovery plan, consider e-discovery mediation with a qualified neutral.
6. Meet and confer process must be genuine. You must make a good faith effort to delineate the scope of the requests as well as defining the procedures and protocols you are going to use.
7. Keep detailed lists of your e-discovery efforts. These lists should detail, among other things, what efforts you and your client made to identify and preserve potentially relevant ESI, what sources you contacted to search for ESI and what efforts you made to work collaboratively with opposing counsel.
8. Respond in writing as soon as opposing counsel expresses concern that relevant ESI has not been produced. Ask opposing counsel to explain what specific information is missing and why that information is relevant. Offer to work collaboratively to address their concerns.
9. If an image of your client’s computer is going to be necessary, get it early in the case. That way you can go back to review it as often as necessary without having to bother the client each time.
10. Remember that eDiscovery is more than just the client’s computer (whether at work or at home). Particularly in the family law arena, it also means flash drives, texts from cell phones, instant messages, digital photos, video and audio recordings, and social media (i.e., blog posts, Twitter and Facebook, among others).
By following these recommendations, you will create a good record should you ever need to tender your e-discovery dispute to the Court. But before you file that costly and time-consuming motion, keep in mind these recommendations and try again to resolve amicably your dispute with opposing counsel.
My thanks to the Task Force members for making a significant contribution to our legal community.