On September 1, 2012, Florida’s newly minted electronic discovery rules go into effect. The purpose of this article is to give practitioners who are unfamiliar with e-discovery a basic understanding of the concepts, terms, and applications of this “brave new world.” The breadth and scope necessitates that we address this in two parts; Part One will provide you with a basic understanding of e-discovery, the key terminology used, and examine some of the technology impacting this field. Part Two will explore the technology in more detail, address the defensibility of the technology, and conclude with how this all affects you as a practitioner.
You Can Do This!
Discovery is not new to lawyers; you have been doing it for years and have developed a level of comfort with the procedures and the applicable case law. Like me, you also keep up with the latest developments in the law and advise your clients at the outset of litigation that there will be inquiries to probe the facts of the claims and assertions, including depositions, and requests for documents and that they shouldn’t shred or destroy these materials. You also probably communicate with your clients by e-mail, exchange drafts of documents that way, and may have even begun scanning documents and electronically storing them in your own office. Also like me, you have probably figured out you can do all of this from a multitude of gadgets and devices from almost anywhere. Well, our clients have been doing it as well and you are already equipped with the capabilities to perform e-discovery and probably don’t realize it.
E-discovery is not new either; it has been an integrated part of civil cases in our federal courts for several years. There is a growing body of federal case law addressing e-discovery as well, some of which you may rely upon in the next several years as Florida develops its own body of law on the topic. It is important to note, however, that Florida’s new State Court E-discovery Rules are slightly different from the Federal Rules, so the federal cases you cite must apply to the same concepts contained in Florida’s new rules. With the new rules, you will likely see CLEs, seminars, and white papers on these differences, but the two broad ones are that the new Florida Rules do not have a mandatory “meet and confer” requirement and lack the sanctions components of the Federal Rules.
At its simplest form, e-discovery is just amassing and producing the electronically stored information that your clients used to keep in paper format. It will not obviate paper discovery; it just compliments it. Depending on how much you do and how much you want to invest, your method of production can range from simply e-mailing data to saving data and documents to some transportable media like a CD or a thumb drive to software of varying sophistication and cost. Whatever method you employ, the fundamental purpose remains the same as it was with paper discovery; the production of responsive non-privileged or protected materials.
Terminology
It is helpful to understand some of the more common and important terms used in e-discovery:
- ESI (Electronically Stored Information) – this is the data. Think of it as the old stack of papers you used to have to look through to produce responsive documents.
- EDRM (Electronic Discovery Reference Model) – the process of e-discovery consisting basically of collecting and preserving data, processing it, reviewing it, and finally producing it.
- De-Duping/De-Duplication – the process of identifying and segregating true duplicates.
- De-Nisting – the removal of system and application files from ESI.
- Filtering – narrowing a search of data or a subsequent search.
- Hash Value – like a VIN number for a car, the unique “fingerprint” assigned to each file.
- Keywords – identified/pre-selected words used to search ESI in the review process.
- Metadata – information about the data, e.g. who created it, edited it, when, on what computer, etc.
- Native Format – the original format for data, such as MS Word, which can then be converted into another format for production, such as pdf or tiff, if appropriate.
- PST – the file where e-mails are stored.
- Preservation – maintaining the original data in an unaltered state.
- Spoliation – the loss or destruction, either inadvertent or intentional, of data that will challenge our judges to craft an appropriate remedy and keep our appellate courts busy for years to come.
The Technology
Now, we will explore the technology in more detail, address the defensibility of the technology, and conclude with how all of this affects you, as a practitioner.
The pace of technological developments in the past few years is nothing short of astonishing. While I was reviewing e-mails on my tablet while on a boat in the Bahamas recently, my twelve-year-old nephew remarked that he understood e-mail to be something older people use to send documents back and forth. E-mail really only came into common use in his lifetime, but the past few years have seen an explosion of social media and an increase in other forms of electronic communication, such as texting. All of this technology is producing and creating data that can be a potential goldmine in any litigation and can dynamically alter the course and outcome of a lawsuit.
Whether you are a do-it-yourselfer by nature or prefer to hire an outside expert or whatever your particular case and client require, there is a wealth of technology that is growing and expanding at an exponential pace to assist you. To find the right fit, you’ll have to do a little research, no different than when you selected your computer or phone. Organizations, such as the Association of Certified E-Discovery Specialists have compiled a substantial amount of helpful and timely information on software, vendors, and case law. There are also several conventions where these vendors gather, such as the annual ACEDS Conference in Ft. Lauderdale.
Undoubtedly, from the publication of Part One to the printing of Part Two, the technology used for e-discovery has changed and improved. Well, if it is evolving at such a rate, then why do you need to obtain some technology to assist you now? Because, like your phone and computer, it has become an unavoidable component of the practice of law. New phones come out all the time, but you don’t likely change yours every three months. Similarly, new advances improve the scope and speed of e-discovery tools all the time, however, you will not need to change your technology regularly, but merely to have some reliable and proven technology upon which to rely to assist you in this regard.
The technology or software to assist you in your e-discovery practice can be hosted on your computer or reside elsewhere, such as on the server of a vendor or in the cloud. Each of these options has their own security concerns for protecting client data. Naturally, the decision of which method to utilize is one that only you can make after exploring the options with vendors. Many vendors offer multiple versions of the same technology for those who wish to self-host or those who wish to have remote access to the data.
While technology exists to aid you in sorting data collected or provided from your client and third-parties, you must also be aware that technology exists to assist your clients in preserving, maintaining, and producing ESI. To complement the software, it is not too early to begin discussing a litigation hold policy with your clients and even developing internal training strategies for their employees and contractors to avoid the inadvertent loss of important ESI.
Whatever route you take and whatever technology you ultimately choose to assist you in handling and producing ESI, you will be faced with a decision of how much control to release to the computer/software “brain.” At present, this is a hot button topic in the federal courts and has been addressed in several recent federal opinions. Soft ware that assists us in searching voluminous data that allows the soft ware to make decisions as to relevance has been referred to as “computer assisted research,” “technology assisted review,” and “predictive coding.” Th is is in contrast to technology that utilizes a different method of searching, such as keywords, whereby the soft ware merely identities those pre-defined keywords in documents and leaves the ultimate decision on responsiveness to the practitioner. Obviously, the first method is arguably more sophisticated programming, but its process must be reliable in order to be defended to a court later if the issue arises, which leads us to the issue of defensibility.
Defensibility
Although, at present, our courts may be in somewhat uncharted waters, it is foreseeable from parallel developments in federal cases that the method by which ESI was processed may be called into question in a particular case. While one argument may be that the culling method is protected work product, it may also be appropriate for a court to inquire into the method used in a particular case to determine, for example, whether the imposition of sanctions is appropriate or in balancing which party should bear the costs of production from the party or a third-party.
In selecting software to assist you in e-discovery or a third-party vendor to perform this task, you should inquire as to the methodology employed in the soft ware and its track record to avoid a potentially costly situation later where you are called upon to defend the methodology used in production. Th at is not to imply that computer assisted review or predictive coding is somehow inappropriate or untested technology, but simply that you must be aware of the technology you are using no different than understanding the methodology of an expert you would employ.
So How Does All This Affect You?
This brings us to the all-important question of why should you care about any of this. E-discovery will become an integral component to civil discovery and with it the real potential for a wide range of sanctions.
You may have read this year about a case in Miami in which relevant and critical documents were not produced and the managing partner of a fairly large and well-respected law firm was called before a federal judge to explain why. In the now infamous J-M Manufacturing case in California, a large, national law firm was sued for malpractice as a result of inadvertently disclosing privileged documents in e-discovery.
These sanctions may also directly impact an attorney, such as the case in Virginia State Court, where the attorney was fined over $500,000 for instructing his client to remove and delete photos from the client’s Facebook profile that were damaging to the client in the litigation. Articles on that case report that the attorney no longer practices law as a result of that sanction. Additionally, in the often cited 2008 Qualcomm case from California, the court imposed an $8.5 Million sanction for intentionally secreting or recklessly disregarding relevant documents in e-discovery.
This “brave new world” of e-discovery is here to stay and must be embraced and integrated into the practices of all Florida civil litigation attorneys. It is conceptually not that different from traditional discovery. Disregarding it, however, can be perilous and costly, while mastering its nuances can make you more efficient, cost effective, and provide a better service to your clients.
