Electronic Data Discovery (EDD): The New Discovery
by Craig McGannon, Esq.
Producing documents in today’s litigation environment has become a daunting task for the legal assistant, paralegal and litigation support specialist. The scope of what is discoverable has remained considerably broad, while the sources of discoverable materials have increased in number many fold. With the advent of electronic data discovery, today’s legal professional is pressed even harder to recognize what they have in non-paper form and what they seek that may also be electronically stored.
The New Production Sources
Filing cabinets and desk drawers have been joined by hard drives, email files, instant message platforms, Blackberrys and portable text messaging devices, databases, pen drives, servers , back up disks and even the hard drive in digital copiers. When receiving a discovery demand or crafting a request, litigation teams must consider that information that is sought may reside in any of these locations, and not simply in the boxes sent over by clients or opposing counsel.
It isn’t effective any longer to write discovery demands that don’t at least reference electronic mediums where information can be found. Legal professionals need to sculpt discovery demands that already assume that what you’re looking for has most probably been shared via computers at some point.
The Rules Haven’t Kept Up
Today, state jurisdictions like North Carolina continue to embrace comparable discovery mandates to the Federal Rules of Civil Procedure. American jurisprudence tends toward an over-encompassing approach that makes most things sought discoverable.
Under Rule 34, materials are discoverable if they are reasonably related to the matter in dispute and will not cause an undue burden upon the party seeking the materials. The only restriction on this “broad brush” provision for discovery resides in Rule 26 which protects those materials that may be attorney-client privileged, attorney work-product or deemed of a confidential nature.
With such a broad scope of potential discovery, the argument that production would be too burdensome has continued to be under attack. The standard for a compelling argument to avoid production has continued to rise with pen drives on the market that can hold over four gigabytes of information, and enterprise-level databases being sold in local office supply stores. Our “information superhighway” has made access to data too easy.
In fact, these electronic sources are actually easier to work with than traditional paper-based files since converting electronic information to searchable Adobe PDFs or running optical character recognition (OCR) on images of documents to produce searchable text files can make finding what you’re looking for over a vast collection that much simpler.
So how easy should you make it for opposing counsel, or how easy should they make it for you? The Rules have certainly not kept up in this area – and the interpretation of what is “fair” has been left to the combatants.
Fighting Fair, Battling Electronic Simplicity
What is fair? You’ve spent your client’s money to image all of their materials rather than look through them in paper form. The investment in imaging the documents has saved the client thousands of dollars in legal fees over traditional document review and it’s given you a significant tactical advantage over opposing counsel as you use databases like Concordance, Summation or CaseMap to identify your issues and craft your legal position. A large firm with resources to work in an electronic environment seeks to leverage its size as an advantage. A small, technology savvy firm chooses to use that knowledge to negate the traditional advantage a larger firm might logically enjoy. Either side has a legitimate claim to keep their respective advantage.
Should you just hand over those images and even the playing field? Or should you have them digitally printed (“blown back”) to paper opposing counsel and delay their ability to find what they are looking for? As mentioned earlier, how firms engage in this practice has been largely left to them, and there are those with a reputation for “not playing nice with others.” While a negotiated production process for electronic materials would be the most amicable way to address this dilemma, there are competing interests that are necessarily taken into consideration.
The virtual “mountain” of information that can be produced on opposing counsel has reached levels beyond anyone’s imagination just ten years ago. A single hard drive can hold a virtual “warehouse” of paper, and counsel now have the opportunity to “paper the other side to death” with mounds of irrelevant information that meets the spirit if not the intent of a discovery demand. We are charged with aggressively representing the interests of our clients, but we have to balance that against fundamental fairness and serving justice.
The “Other” Filing Cabinets
What to ask for, how to produce effectively, and managing the process have given rise to an entire industry of document management companies, Electronic Data Discovery experts and in-house litigation support specialists.
There are so many permutations to consider when looking at potentially discoverable materials that outside resources or in-house expertise are a necessity. Someone has to ask the question of not only what is it that you’re looking for, but also where might it be found?
Today’s business person does a great deal of their work electronically. According to Gartner Group, mobile computing alone represents 43% of all of the daily processing going on in America. No matter how often people are told, the use of email and text messaging to send messages “discreetly” continues, though copies of those discreet communication sit somewhere on a lap top, desk top or server, readily available. Entire conversations happen today on email with a ready transcript waiting to be reviewed and needing to be explained.
A copy of a contract can be very telling in litigation. Equally telling however, can be the other versions of it that may exist in some word processing program and any emails or memos that are available that relate to it. Through the use of “metadata,” information about a document that can be read, counsel may learn a great deal about a negotiation or a party’s intentions. In the metadata we can find out information like when the document was last viewed, last modified and who authored it. When receiving electronic files from opposing counsel this metadata can be critical in assuring that spoliation (the altering of information) has not taken place.
How complex can these things get? A recent addition to the challenges in the electronic arena includes “white text.” The facts are simple. Two individuals have a harmless email exchange regarding lunch. One of them types an important and legally relevant comment at the end of the lunch email and then changes the font to be white instead of the default black text. This “white text” hides the message when read in its normal white background email screen or printed on white paper. The message has been passed surreptitiously, and no one is wiser except the two conspirators.
The import of addressing these “other” filing cabinets in both producing and seeking documents has to be part of every litigation discovery strategy.
Where Do We Go From Here?
We have to balance the advantages of electronic processing against budgets, case specifics and our intended litigation goals. We know that electronic materials are taking a more significant position in the daily practices of our client. This new media must also take a larger role in our case management process.
We have to remember to use the scales of justice to balance the adversarial nature of litigation and representing our clients’ best interest against fundamental fairness and the spirit of the law.
About the Author
Craig McGannon is a former litigator with more than 17 years of litigation support technology and large-scale litigation experience in the class action asbestos defense field. He is the CEO of LEGALIS & Copy Solutions Group, a document management company providing reprographics, digital printing, imaging, OCR, coding and trial support to the North Carolina market for the last six years. For litigation support consulting or document management services, you can reach Craig at 919.833.1981 or craigm@legalis.com.
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