Electronic Discovery in the Legal Industry

Executive Summary

Electronic discovery is changing the way evidence can be presented amongst both parties and the judge. In the early stages of civil litigation, the exchange of electronic discovery between two parties is a critical process that involves the deliverance of electronically stored information, also known as ESI. ESI is different than paper documents because the information is created, manipulated, communicated, stored, and utilized in a digital form. For this procedure to occur, it requires the use of computer hardware and software.

In California, ESI is considered to be networks and workstations, removable disks, USBs and other removable media, temporary files, program files, embedded or metadata information, audit trails and computer logs, geolocation data, corporate intranets, e-mail, laptops and home computers, personal digital assistants, etc.

ESI requires us to become familiar with new terms, practices, procedures, and both the California and Federal Rules relative to it. For example, electronic data is preserved, stored, and produced differently than paper, right? Attorneys and paralegals need to understand the difference because they are facing the ethical duty to become familiar with new technologies, rules, and case law, in which only some of that is related to electronic discovery.

The purpose of this report was to conduct primary research into understanding the fundamentals of electronic discovery within the electronically stored information. This research will show how electronically stored information should not be underestimated, as it could possibly be used as a “smoking gun” for the plaintiff or defendant in a high-profile civil case. The Discovery of ESI can easily become extremely expensive and disruptive. If mismanaged, costs escalate further.

Based on the findings of this report, it is recommended that good management requires early and ongoing discussions between opposing counsel about:

1. What to search for
2. How to search
3. Where to look
4. In what sequence and in what format to produce?

Discussion of Findings

Background Information

Daily, millions of people leave a digital trail of electronic evidence, whether it is in the workplace or in the comfort of their homes. This digital trail of evidence that we create continuously monitors our every move. eDiscovery has played a key role in most famous legal battles for the past few decades. For example, the deletion of emails in Hilary Clinton’s personal email server from her legal team resulted in controversy around the reviewal process by Congressional investigators, once most of the emails were recovered. The handling of the emails became the central point of conflict in the 2016 presidential election. To get a better understanding of eDiscovery, it is best to start with the Federal Rules of Civil Procedure which describes and defines the discovery of electronic information.

What is eDiscovery?

eDiscovery is a form of data mining where it involves the process of applying traditional legal procedures to electronic evidence. It is difficult to identify any business transaction that is not created on or passed through a computer. Personal, banking, health, and social transactions are all conducted by computer. Each contact with a computer creates “electronic evidence.” And unlike paper records, numerous duplicates are also “backed up” and may even be stored in the cloud. One of the ways for an organization to continue to thrive is by implementing an effective eDiscovery strategy. Enforcing this strategy is required to comply with federal regulations and litigation requirements. The consequences of failing to preserve and deliver requested data may result in sanctions that can cause the eminence of a company.

Case Law

Zubulake v. UBS Warburg, LLC (2003-2005)

The defendant, UBS Warburg, LLC, was sued by the plaintiff, Laura Zubulake, for gender discrimination, failure to promote, and retaliation. She stated that her claim could be validated by emails sent between UBS employees. An order by the judge stated that both parties were to share the costs of recovering UBS backup tapes that contained the emails. UBS complied accordingly by enforcing the employees to preserve information stored on backup tapes. Though in the process of preservation, various backup tapes were identified to be missing. Sanctions were presented to the federal district court judge by Zubulake for UBS’s failure to preserve the emails within the missing backup tapes. This case addressed a wide range of issues within electronic discovery which provided lawyers with brand-new practices that would relate to both the legal and technical aspects of electronic discovery. Some of the issues included:

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• The scope of a party’s preservation of electronic evidence within the course of litigation.
• The duty of surveillance towards a client by their attorney is to comply with preserving and producing electronic evidence.

Zubulake case caused the court system to take a look at the cost burden of e-discovery and create a seven-factor test which consisted of:

• The extent to which a request is tailored to discover relevant information
• The availability of information from other sources
• The total cost of production, compared with the amount in controversy
• The total cost of production, compared with the resources available to each party
• Each party’s ability and incentive to control costs
• The importance of issues at stake in the litigation
• The benefits to both parties of obtaining the information

Henson v. Turn (2018)

Subscribers of Verizon’s cellular and data services, plaintiffs Anthony Henson and William Cintron sued the defendant Turn, Inc. regarding their violation of data privacy. Turn, Inc. is a partner of Verizon that provides them with market data to use for direct advertising campaigns toward a specific audience they want to reach. Within Verizon’s mobile devices and data used for other devices such as computers, there are settings where users are allowed to delete or block cookies. Cookies are known as lines of software code that survey and collect information about a user’s browsing and application use. Both plaintiffs accused Turn, Inc. of implementing the practice of “zombie cookies” on users’ devices. Zombie cookies occur when a user tries to erase or block cookies, these same cookies regenerate to continue tracking user browsing and application use. The central issue of this case was the scope of production and whether or not the large amount of mobile data provided would all be relevant to the case. The judge ruled against the defendant’s production request stating that their broad request included irrelevant, private data.

Characteristics of eDiscovery

Ethical Duties

Attorneys must take appropriate steps to ensure both, secrets and privileged information of a client remains confidential. This obligation also includes electronic communications. Rule 3-100 of the California Rules of Professional Conduct states that a member of the California State Bar cannot disclose information protected under the attorney-client privilege unless the member believes that the disclosure of information may result in bodily harm to an individual. Thus, attorneys must understand how to maintain, locate, and guard against disclosures of attorney-client communications through any electronic means including text messages, e-mail messages, and even social media posts. An attorney’s duty of competence as a litigator generally requires, at a minimum, a basic understanding of, and facility with, issues relating to the discovery of ESI.

Federal Rules of Civil Procedure

The Federal Rules of Civil Procedure were revised in 2006 to create parameters for electronic records, which formalized e-discovery within the FRCP. Based on some ambiguity from the 2006 e-discovery amendments, the latest revisions to the FRCP in 2015 did much to clarify the rules specific to e-discovery.

Those involved with e-discovery need to be aware of the following rules:

Rule 26 (f)

Known as the “meet and confer” rule where parties must meet before certain court deadlines. It requires that the parties must consider the possibility of prompt settlement, discuss any issues about preserving discoverable information, and develop a proposed discovery plan.

Rule 34 (b)

This rule gives the requesting party permission to determine how they want the requested information to be produced and allows the responding party to object if illogical.

California Electronic Discovery Act

In June 2009, Assembly Bill 5, also known as the Electronic Discovery Act was signed to exclude confusion with reference to the discovery of electronically stored information. Under California state law, demand for ESI may specify the form or forms in which the information is to be produced. If the form is not specified, the ESI must be produced in the form in which it is ordinarily maintained or in a form that is reasonably usable.

In addition, the act reduces irrelevant and excessive costs of litigation that are unnecessary in a court of law. This act adds to the California Code of Civil Procedure to incorporate similar provisions regarding ESI within the Federal Rules of Civil Procedure which also constructs a sequence of procedures for litigants to discover and object to.

References

1. Process: The Basics of E-Discovery Guide. (2018, October 30). Retrieved July 13, 2019, from https://www.exterro.com/basics-of-e-discovery/e-discovery-process/
2. School, D. L. (Ed.). (n.d.). Information Governance Reference Model. Retrieved from https://www.edrm.net/frameworks-and-standards/information-governance-reference-model/
3. Sparks, K. (n.d.). Establishing an ESI Data Collection Process. Retrieved July 13, 2019, from https://store.legal.thomsonreuters.com/law-products/solutions/ediscovery-point/pricing-and-services/esi-data-collection