Electronic Discovery “Best Practices”

Here is a “must read” paper on “best practices” in electronic discovery. A few key points to ponder: * “The recent Morgan Stanley case in which massive punitive damages were awarded ? at 1.5 times the actual damages sought?highlights a judicial and jury lack of tolerance for perceived refusal to produce electronic information promptly and completely.” * A problem with electronic discovery is the inadvertent revealing of privileged documents to opposing counsel. Duplicate copies may be forwarded even though the original copy had been labeled ?privileged.? * “Metadata presents a crucial difference electronic and printed documents. . . . As lawyers become aware of metadata as an additional source of evidence, it will continue to gain importance in litigation. Recognizing its evidentiary value, more lawyers are requesting it from opposing counsel as well as using it as a resource in making their own evidentiary presentations. . . . Lawyers can expect at some point to face requests, or a court order, to produce metadata. Metadata is now considered to be an integral part of the document it describes. Recent advances in technology make preserving and reviewing metadata easier.” * “When a requesting party demonstrates a good faith effort to establish reasonably tailored electronic discovery requests, courts will hold the responding party to a higher standard in providing a full response. A party unable to readily produce responsive documents may open itself up to intrusive measures, such as, the court ordering that an opponent?s expert be given direct access to its computers. Further, one court has interpreted Federal Rule of Civil Procedure 35 to require some showing of non-compliance with discovery obligations before an opponent will be allowed direct access to a company’?s computer databases. If a corporation?s own actions contribute to its discovery difficulties, it is especially unlikely that a court will be sympathetic to pleas for relief. Courts are particularly unimpressed with vague claims that a particular request is unduly burdensome.” * Discoverable electronic information may be stored on hard drives, networks, back-up tapes, lap tops, floppy disks, employees? home computers, PDAs and cell phones. * Reliance on representations of senior managers about what electronics information existed is not enough. * We will be wrestling with issues of cost-shifting, document retention policies and spoliation issues for a long, long time. * The “best practices” regarding electronic discovery, which obviously apply much more to corporate parties rather than individual personal injury victims, include:

1. Consider implementing a formal document retention policy to formalize rules for saving and destroying electronic documents. 2. Focus on making litigation preparedness a part of employees? daily work. 3. Establish an ongoing working relationship between in-house legal and IT personnel. 4. Organize data storage efforts and establish systems that simplify later identification, retrieval, and production of responsive information. 5. To preserve evidence when necessary, outline a ?litigation hold? plan (as discussed above) for this suspension of usual document destruction and back-up tape recycling protocols. 6. To designate and train an IT department representative to act as the company?s Rule 30b(6) deposition witness when electronic data storage may be at issue. 7. Expand the working knowledge of the client?s operations to include client information systems o that outside counsel is equipped to establish discovery parameters with opposing counsel early in the case and challenge overbroad requests if necessary. 8. Outside counsel should maintain a focus on minimizing the disruption of client operations. 9. Before and after discovery requests are received, adequately explain the scope of the obligation to preserve electronic data and the duty to search different systems and storage media. 10. Outside counsel should become acquainted with key IT personnel.

We have only just begun to explore the challenges and opportunities that electronic discovery pose to those of us who represent devastated individuals and families in claims against large corporate entities.