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.

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: Rule 26(f) requires both parties to meet and confer on the access to computers or servers in question and what procedures need to be followed.
2. How to search: search for keywords, names and/or patterns within the relevant data.
3. Where to look: your IT team or company should have set requirements on what needs to be collected based on the meet and confer conference.
4. In what sequence and in what format to produce: prepare the collection of data and format all of the documents based on what both parties have agreed on in the meet and confer conference.

Discussion of Findings

Background Information

On a daily basis, millions of people leave a digital trail of electronic evidence, whether it is in the workplace or in the comfort of their home. 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 the 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 where it 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 (‘Intro to Electronic Discovery – Basics of eDiscovery’). 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 ways for an organization to continue to thrive is by implementing an effective eDiscovery strategy. Enforcing this strategy is required in order 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 (Ontrack). 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 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 back up 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:

• 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 to comply with preserving and producing electronic evidence.

Henson v. Turn (2018)

Subscribers of Verizon’s cellular and data services, plaintiffs Anthony Henson and William Cintron sued the defendant Turn, Inc. in regard to their violation of data privacy (Casemine). Turn, Inc. is a partner of Verizon that provides them market data to use for direct advertising campaigns towards 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 users’ 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 towards 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 attorney-client privilege unless the member believes that the disclosure of information may result in bodily harm to an individual (The State Bar of California). 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 for prompt settlement, discuss any issues about preserving discoverable information and develop a proposed discovery plan (Cornell Law School, “Rule 26”).

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 (Cornell Law School, “Rule 34”).

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 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. The intention of this Act is to “eliminate uncertainty and confusion regarding the discovery of electronically stored information (O’Neill).”

[bookmark: _44sinio]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 is unnecessary in a court of law. This act adds into 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.

Working with eDiscovery

Factors in Planning Discovery

eDiscovery scope helps determine the amount of data to be collected or searched and plays a key role in controlling costs. Communication can be also be a factor in reducing costly and time-consuming e-discovery processes (Tata). Attorney-to-attorney communication at the beginning of litigation and during e-discovery helps narrow the focus to identify relevant information. Communication between litigants may reveal information about the opposing client’s network retention policies and system operations.

Before using a broad e-discovery focus, take the following into consideration:

• Look at the size or projected size of the opponent’s network.
• Using a broad discovery scope on a large network can generate large amounts of irrelevant data, where using a targeted discovery on a large network can reduce the amount of data to review but could require additional searches.
• A broad e-discovery scope might be more using when dealing with smaller companies.
• Smaller companies often don’t have as many IT resources.
• Retention policies might be in limited use and there may be fewer backup files.

Electronic Discovery Reference Model

The Electronic Discovery Reference Model, or “EDRM”, was created by George Socha and Tom Gelbmann with the objective to shrink huge amounts data down to a manageable scale (“EDRM Model”). This helps handle large amounts of electronic evidence in civil or criminal cases and reduces the volume of information to what is relevant.

In the EDRM, the identification stage starts with identifying potential sources of relevant data where the IT team sets up requirements for what needs to be collected. The preservation and collection stages are intertwined because they rely on the requirements developed in the identification stage. The processing stage involves determining what electronic stored information items are suitable for review and production in regard to the project requirements. The review stage is when investigators take into account what is relevant and consider whether to exclude proprietary information, like confidential government information. In the analysis stage, investigators examine the files for relevant information, such as patterns, keys, terms, people’s names, etc. The production stage packages data and puts it into a format both sides have agreed on. Lastly, the presentation stage only occurs if there is a conflict (“EDRM Model”).

Information Governance Reference Model

Information management is how a company organizes and manages data. Information governance requires determining which laws and regulations apply to an organization (Duke Law). For example, government agencies must comply with the Freedom of Information Act and schools must adhere to the Family Educational Rights and Privacy Act (FERPA).

During the development of the EDRM model, participants decided information management needed its own model, thus the Information Governance Reference Model (IGRM) was created. Information governance is a way of ensuring that data is managed correctly from the top down. This includes IT efficiency of storing, purging, backing up, and restoring data, as well as, deleting and archiving files.

Managing eDiscovery

Data Collection

When choosing a scope, organizations should consider the impact data collection will have on normal business activities and cost. Data collections should target repositories used by key people and follow reasonable selection criteria. For small companies or a single person, the scope of data collection is medium to small. The reason being is because small companies might not have the financial or IT resources to retain data. Though this can run the risk of the company not being prepared for litigation and the loss of relevant data is higher. Large companies consist of an abundant amount of data collection, which can serve as a disadvantage when using a broad eDiscovery scope. The main disadvantage of using broad e-discovery scope in large organizations is cost because searching for data to a case is time-consuming and expensive. Within searching for data, another common problem, is identifying where relevant data might be located because backup drives may not be kept on site (Sparks). Out of all of the eDiscovery phases, data collection may reasonably be the most meticulous task seeing that you are exporting electronically stored information from its original source into a separate archive.

Conclusion

ESI rapidly increases at a substantially greater rate and degree than does paper. Consider the multitude of places where electronic data could be stored and duplicated. Gathering discovery is now more complex and may involve digital forensics experts or Web-based services. Litigation software is effective only if the user has been well trained in the software’s basic and advanced functions. Law firms often seek experienced IT staff or legal staff trained in e-discovery processes and tools. IT staff can often search, organize, and process large volumes of data very quickly by using advanced litigation database features and programming. Creating a discovery plan and having a strong information governance system can benefit a company by being prepared for litigation while also spending less money.

Recommendations

Electronic Discovery in the legal industry can make or break your case. The Discovery of electronically stored information can easily become extremely expensive and disruptive. If mismanaged, the cost of analyzing electronic documents and production could escalate further.

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

• What to search for:
  • Rule 26(f) requires both parties to meet and confer on the access to computers or servers in question and what procedures need to be followed.
• How to search:
  • Search for keywords, names and/or patterns within the relevant data.
• Where to look:
  • Your IT team or company should have set requirements on what needs to be collected based on the meet and confer conference.
• In what sequence and in what format to produce:
  • Prepare the collection of data and format all of the documents based on what both parties have agreed on in the meet and confer conference.

References

1. Casement. (n.d.). Henson v. Turn, Inc. Retrieved August 5, 2019, from https://www.casemine.com/judgement/us/5bd14fe08b09d31e5fe827a3
2. Cornell Law School (Ed.). (n.d.). Rule 26. Duty to Disclose; General Provisions Governing Discovery. Retrieved August 6, 2019, from https://www.law.cornell.edu/rules/frcp/rule_26
3. Cornell Law School (Ed.). (n.d.). Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes. Retrieved August 6, 2019, from https://www.law.cornell.edu/rules/frcp/rule_34
4. Duke Law. (n.d.). EDRM Model. Retrieved August 5, 2019, from https://www.edrm.net/frameworks-and-standards/edrm-model/
5. Duke Law. (n.d.). Information Governance Reference Model. Retrieved July 13, 2019, from https://www.edrm.net/frameworks-and-standards/information-governance-reference- model/
6. Intro to Electronic Discovery – Basics of eDiscovery. (n.d.). Retrieved August 5, 2019, from https://www.logikcull.com/guide/introduction-to-ediscovery-basics
7. O’Neill, M. (2019, August 5). The California Electronic Discovery Act: New Rules Governing E-Discovery Are Effective Immediately[PDF]. Palo Alto: Paul Hastings.
8. Ontrack. (n.d.). Zubulake v. UBS Warburg. Retrieved August 5, 2019, from https://www.ontrack.com/uk/zubulake/
9. 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
10. Tata. (2016, March 7). Why E-Discovery is Important to Organizations? Retrieved August 5, 2019, from https://www.securitycommunity.tcs.com/infosecsoapbox/articles/2016/03/07/why-e-discovery-important-organizations
11. The State Bar of California (Ed.). (n.d.). Rule 3-100 Confidential Information of a Client. Retrieved August 5, 2019, from http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Current-Rules/Rule-3-100