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 dicovery; the production of responsive non-privileged or protected materials.
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 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 yearold 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.
In Part Two, we will explore the technology behind electronic discovery in greater detail and its defensibility, as well as how all of this will now affect your practice.