By: Charles B. Jimerson, Esq.
Anyone involved in litigation today knows that E-Discovery is a growing tool in the litigator’s tool box used for the purpose of the production of documents by electronic means. Specifically, E-Discovery is discovery that deals with the exchange of information in electronic form referred to as Electronically Stored Information (“ESI”). Should a lawyer choose to take the route of E-Discovery during the course of litigation, the following ten categories may help develop a cost and time efficient plan.
1. Know the Florida Rules of Civil Procedure on E-Discovery.
The Florida Rules of Civil Procedure were recently amended the following rules to address ESI:
1.200 Pretrial Procedure: 1.200(a), (5)-(7) provides that a pre-trial or case management conference may be set by the parties or ordered by the court. However, if the parties do choose to arrange this conference, the following ESI topics should be discussed at the outset: the possibility of admissions of fact and voluntary exchange of documents and ESI, and stipulations regarding authenticity; advanced rulings on admissibility of documents or ESI; facilitate agreements on extent of preservation, form of production, and limits on ESI.
1.201 Complex Litigation: 1.201(b) provides the previously discussed pre-trial or case management conference is mandatory in complex litigation cases.
1.280 General Provisions Governing Discovery: 1.280(d)(1) places limitations on ESI and authorizes objections to discovery of ESI from sources that are inaccessible. The objecting party bears the burden to prove undue burden and cost. However, a court may still order the discovery if the requesting party shows good cause. Beware that this also creates the possibility of cost shifting responsibility. 1.280(d)(2) sets out reasonableness and proportionality factors pertaining to an objection of undue burden and cost.
1.340 Interrogatories to Parties and 1.350 Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes: Both of the before mentioned rules were amended to allow the production of ESI in either the answer to an interrogatory or response to a request. A requesting party can specify the format of the ESI, and if the requesting party objects or no format is specified, the responding party must state the intended format of production.
1.380 Failure to Make Discovery; Sanctions: prohibits sanctions, absent exceptional circumstances, for failure to provide ESI information that was lost as a result of routine, good-faith operation of an electronic information system. However, sanctions have been imposed for the following: failing to issue the litigation hold letter; failing to inform the client preserve documents, ESI and the device the information is located; failing to meet with the “key-players”; failing to meet with IT and Business Administration Personnel; failing to identify potential sources of ESI and instruct client to preserve those sources.
1.410 Subpoena: 1.410(c) provides that respondent must produce in an ordinarily maintained or reasonably usable form. Objections may be made pursuant to rule 1.280(d)(1)-(2).
2. Develop an E-Discovery production plan.
Developing a plan for the process of E-Discovery will help reduce costs by limiting what must be produced. A high volume of production can raise the costs substantially, which in turn can possibly be the requesting parties’ responsibility. The E-Discovery production plan should pan out the complexity of the project, the mechanics available or unavailable for production, and who needs to be contacted before, during, and after the ESI production process. Once the contacts have been determined, the business operations of the organization need to be confirmed. Further, the information of what, where, and in what form the organization has the ESI is essential to the beginning of the E-Discovery process.
Also, there should be a general understanding of possible ESI locations. For example, Personal computers, Servers, Mobile phones, Copiers, Thumb drives, CDs, Digital cameras, GPS devices, Vehicles, Tablets, On-line back storage devices, Backup tapes, Offsite servers or backups, and “the cloud”. All of these locations should be kept in mind when requesting the production of ESI.
3. Have your client prepare a visual network map of the business organization.
The visual network map will show how all the documents and their storage positions are connected to each other. This network map will also show if a user created ESI exists and where logs such as system and application logs reside. The more detailed the network map the less time and cost will be considered necessary.
An example of a more efficient and effective network map would be dividing the ESI into different categories such as databases and management systems on one side, and documents within folders or unattached documents without organization on the other. Within the categories, you want to include the size of each listing for negotiating purposes with opposing counsel. This step will ultimately lead to an easier decision on production format, limitations, and costs.
Understanding the ins and outs of the organizational network within an organization is imperative when requesting or producing ESI. A good idea is to get to know the systems through IT personnel of the organizations through interviewing or depositions. Figuring out how the systems are setup and used can help determine the scope of the ESI production.
4. Hold a conference with opposing counsel.
As mentioned earlier, the Florida Rules of Civil Procedure do not require a meeting with opposing counsel for ESI discovery unless the litigation is complex. However, whether or not you are dealing with complex litigation, best practice is to meet with opposing counsel to determine the ESI scope, timeline, budget, cost sharing, and most importantly the form and format of the production.
5. Prepare and send a hold letter to your client and opposing counsel in preparation of ESI discovery.
This letter should indicate that there is a need to preserve all ESI contained within the organizations infrastructures. Both your client and opposing counsel should receive a letter indicating the need for the suspension of regular document retention policies and preservation of data types, locations, and individual and nature of evidence that can possibly be requested. The letter should also specify the need to identify administrative and IT personnel, and Key-Players. The letter should also contain a clause to the effect that a response of acknowledgement is required to help avoid any defenses that may be brought out through the course of litigation. Failure to submit the litigation hold letter could result in sanctions or even a determination of negligence.
6. Preservation is Key!
The preservation process is essential to any liability for defenses raised. If ESI is not properly preserved, you may be at risk of the spoliation of requested documents. The preservation process should include past and future ESI. While preserving the ESI, be careful not to alter the native file or you risk the possibility of losing the metadata which reveals the author, creation date/time, modifications to the document, last time accessed, hidden or versioned text and the origin of the date. All of the metadata is extremely vital information in the litigation process. Best practice is to document all steps of your preservation process such as what is being preserved, date/time/method of preservation and who conducted and verified the preservation.
You can prove the authenticity of the ESI through various ways. Two ways to prove whether the ESI has been altered is through the metadata explained above or a hash value which is known as a digital fingerprint. This hash value will change if anything has been altered to the document itself.
7. Once documents are preserved, collection can begin.
A recommendation when dealing with a more complex ESI litigation case would be to hire a third-party vendor for the collection process. With that said, it is not absolutely necessary to hire out vendors, but the collection process can set you back and be more costly if not done correctly. This stage in the ESI discovery process is the transfer of data from an organization to counsel where the relevance of data will be determined. This stage will also reveal the chain of title to the ESI to be able to prove that anything collected has not been altered for the production stage.
8. Processing: Indexing and extracting metadata.
The processing stage sets up the document review platform for indexing and extracting the metadata within the native files. As discussed earlier, metadata is essential to the discovery process as it contains vital information about the ESI under review. There are three formats an attorney should be aware of while practicing ESI discovery. The first format is known as a petrified format, which is a read only document contained in PDF or TIFF formats. The metadata within these formats is extracted and presented in a load file for a review platform. The second format is known as a native format, which is when the ESI is in its original format. Keeping the ESI in its original format can be the fastest way to begin reviewing but the downside is not all computer software is compatible with opening native files so an application to open may be required and could possibly cause errors. The third format is known as quasi-native format which is more like an in-between of the petrified and native format. This format can process and convert ESI into a form which can be reviewed by most review platforms. During the processing for the review platform, the metadata can then be extracted.
9. Review the documents.
Documents need to be reviewed for responses to discovery and for privilege. Reviewing needs to be carefully done to ensure the ESI satisfies the request, and your privileges are protected. The reviewing process piggy backs off the processing phase in which keyword searches or group coding have been implemented, which in turn will ease the review stage. With searches and coding in place, the review stage can determine relevance of documents and find date ranges within the ESI. The thought process in the review stage should be documented including any conclusions or codes that may have been set toward the ESI to aid in the production stage.
10. Produce the ESI in the form and format agreed upon earlier in the ESI discovery process.
In this final stage, all the kinks should have been worked out with the form and format of production. If not, the Florida rules on E-Discovery discussed earlier explain what to do in such a situation. Metadata can be requested prior to this stage, if requested and the format is a petrified format, then the metadata will be sent in a separate format as opposed to within the PDF/TIFF formats. As stated earlier, native formats already contain the metadata within their original format. A suggestion to ease review, production, and complications would be to add bates numbers to the native documents. Bates numbers are a series of numbers which basically number the pages of each document contained within the ESI. These numbers can help reduce costs if done initially and help in preparation of a privilege log if needed.
With an operational knowledge of the ten things listed above, Florida lawyers should have a good grasp and general understanding of E-Discovery as well as how to save time and reduce costs if choosing to practice in E-Discovery litigation. Should you feel overwhelmed regarding a document production on one of your cases, please feel free to contact an experienced attorney at Jimerson Birr to help you navigate the challenges and potential pitfalls.