E-Discovery: Preparing for the Inevitable
The internet has changed the world. Electronic communication is now possible around the globe–around the clock. Letters, pictures, documents and messages can now be sent instantly, and in many cases can be sent and received whether you are sitting at your desk or not. With increased conveniences, however, come some potential pitfalls. In the legal profession, the newest challenge is discovery of these potentially useful communications in litigation. Electronic discovery (or “e-discovery”) is a tool that may enable an adverse party to access essentially everything ever created, typed, edited, saved, sent, copied, transmitted, forwarded, received and, yes, even deleted, on your company’s phone systems, computers, or handheld organizers.
Discovery of electronic and digital communications create a potential host of issues and concerns different from paper communications. For instance, once an email is sent (or received), it is stored on your computer and/or your office’s server. “Deleted” does not necessarily mean that documents or files are removed from your computer. There’s a rapidly emerging industry called “computer forensics” that specializes in helping lawyers conduct and respond to electronic discovery, often “finding” deleted files and communications. Of further concern is the fact that people generally write information and comments in electronic communications they would never include in a “hard-copy” letter.
E-discovery has required the legal profession to consider a host of issues. Fundamental questions quickly arise such as: What kind of data is discoverable? How much data is discoverable? When does a party’s duty to preserve data (i.e., refrain from destroying/deleting it) begin? What should one ask for? When is a responding party being compliant or obstructive? Who pays for the potentially high cost of producing electronic data?
Arizona litigants face an added complication in the e-discovery puzzle. The Arizona Rules of Civil Procedure place the onus on the disclosing party to provide, without being asked by the other side, relevant or potentially relevant evidence. In a world of growing electronic materials and decreasing paper documents, that could include much of what is on a business’ computers. Arizona’s courts have yet to provided guidance on the do’s and don’ts of e-discovery, but questions of how much data must be produced and when it must be produced are sure to pose unique challenges.
In light of the trend toward aggressive and broad e-discovery, companies and individuals alike should pay attention to policies concerning computer usage for communications. At the very least, every employee of every business should be reminded that their emails are communications, and should be considered and authored as if “hard-copy” letters. Companies should also establish standardized policies for preservation, retention and deletion of electronic information files and communications.
E-DISCOVERY: SOME PREPARATORY MEASURES
Businesses should establish policies for the preservation, retention, and deletion of electronic data. A set policy is especially important if a business anticipates that litigation is imminent or possible.
Officers, directors and employees should be reminded that emails are not private messages–they are presumed discoverable and may be retrieved even if deleted.
Even before litigation ensues, a lawyer should send a preservation letter informing the adverse party that it should halt any and all destruction of electronic data.
Lawyers and their clients should not rely on their own understanding of the technology and issues involved in electronic discovery in any given case; they should hire a competent computer forensic specialist to assist them–both in propounding discovery requests and responding to them.
Beware of “metadata.” Metadata is data about data. For instance, the metadata of an email would contain the date it was created, by whom, how long it took to create, when and by whom it was modified, received, copied to (even blind copies) and “deleted.” Metadata can provide information on whether a particular person saw a certain document.
Important Note: Production of electronic data is costly because of the difficulty in accessing it. The responding party may be on the hook for all or most of that cost if the court determines that that party could have and should have had a better system in place for production.
SOME TYPES OF ELECTRONIC DATABASES
- Computer systems (hardware and software), including systems no longer utilized called “legacy systems”
- Backup or disaster recovery files/systems
- Tapes, discs, drives, cartridges and other storage media
- Laptops, personal computers (PCs), hand-held organizers
- Mobile phones, smart phones
- Internet storage (the “Cloud”)
- Audio systems, including voice mail
- Internet data, blogs, cookies