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10 ways to beat e-discovery abuse: when the defense tries to block your discovery of electronic data, these tactics can help you gain access to the information you need.

Suing a corporation successfully calls for highly specialized knowledge of the industry, as well as electronic discovery. Obtaining e-discovery has become arduous; the defense strategy is to consume your finite resources and fatigue the courts.

Why is e-discovery worth fighting to obtain--or for the defense, worth fighting to avoid producing? Because analyzing it ca n help you establish why a defendant's labeling was inadequate, how the defendant was deceptive with regulators and the public, why a product is defective, or why the defendant was negligent.

Certainly, the company could produce most of this information in hard copy, and you could use traditional techniques to sift through it and learn what the defendant knew and when. However, because of the vast amount of information available and the ability to sort documents and data electronically, it is far more efficient to review and analyze this data in electronic form.

One court has described electronic data to include
 voice-mail messages and files; backup voice-mail
 files; e-mail messages mad files; backup
 e-mail files; deleted e-mails: data files,
 program files; backup and archival tapes;
 temporary files; system history files; Web
 site information stored in textual, graphical,
 or audio format: Web site log files;
 cache files; cookies; and other electronically
 recorded information. (1)

Generally, these are many of the places where you may find evidence from almost any company--and this list is not exhaustive.

Some company information is electronic from the outset, both created and stored on computers. Other data may have started in hard copy, but the company, for business reasons, has scanned the documents and keeps them in electronic form.

You can find electronic dam on company desktop and laptop computers, backup tapes, firewalls, various servers (including redundant servers), and employees' personal computers. E-mails and electronic documents contain "metadata" that tells the history of the information, including where it has traveled within the company. (2) Other data can be found in cell-phone text messages, personal digital assistants, computer-based fax programs, and some telephone messaging systems. The volume of available information can become overwhelming, so focus on conducting discovery as efficiently as possible, balancing reasonable search efforts with the need to locate the "smoking gun."

When possible, it's always best to reach an agreement with the defendant on a reasonable scope of electronic discovery. Sometimes, for example, the defendant will agree to produce database information, e-mails, regulatory documents, and scanned data in electronic form and allow you to search certain employees' computer files. Federal Rule of Civil Procedure 34 has long established your fight to this type of discovery.

However, what do you do when the company takes a "hide the ball" approach? How do yon defeat obstructionist defense tactics?

Start with the Rules of Civil Procedure: They remain your primary tool for learning about a company's databases and defeating obstructive moves. (3) However, in the context of e-discovery, the rules--and the courts that interpret them--have lagged behind. Despite the popular view that Rule 34 needs to be amended to address the challenges presented by e-discovery, (4) that hasn't yet happened, and only a few local rules have been amended to address e-discovery. As a result, well-financed defendants can stonewall and obstruct e-discovery while the courts struggle with a largely foreign topic.

Federal Rule of Civil Procedure 34 defines documents as "writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form." In your discovery requests, you must supplement this definition to specifically include and describe electronic data. Rule 26(b) (1) provides the general parameters of discovery, and you can use Rule 26(a) (1) (B) to require a disclosure identifying the location of such data.

In addition, the advisory committee's note to the 1993 Rule 26 amendments specifically contemplates the production of electronic data: " [T]he disclosure should describe and categorize, to the extent identified during the initial investigation, the nature and location of potentially relevant documents and records, including computerized data and other electronically recorded in formation." (25) Also, if the defense provides the data to its expert in an electronic format, you can request the information in the same format?

It is now axiomatic that electronic data is discoverable and should be produced? Finding the data and getting the defense to produce it in a usable form is the challenge. A few important strategies, implemented early, can help you and the court avoid volumes of discovery motions and lengthy hearings later.

10 strategies

Retain an expert in electronic discovery who specializes in the defendant's industry. No one would prosecute a medical malpractice case without first consulting a physician in the defendant's specialty. Similarly, do not even contemplate seeking e-discovery without consulting an expert to help you focus your inquiry relative to the themes of your case.

Investing in an expert will pay dividends when the defendant starts to resist production. The expert can participate in meetings with the defendant's information technology staff, write memoranda to educate the court about technology issues, and testify at hearings on the need lot the electronic data. Retaining this expert can save you hours that you would otherwise spend in depositions and preparation to understand the technology and where to find the data. A simple Internet search can find many companies that offer e-discovery consulting services.

Send an electronic-discovery demand letter outlining what you expect the defendant to preserve and produce. The defendant generally will not voluntarily turn over everything--or anything. Before you begin the fight over e-data, put the defendant on notice of what you intend to seek, how you expect it to preserve materials, and the basic production requirements.

A carefully drafted letter delivered to the defense attorney or the company with the service of the complaint should at least outline data you want preserved, request a "meaningful" meeting to construct a mutually acceptable search and production protocol, and explain that you expect the defendant to produce all data in the format in which it was originally maintained. In some circumstances, particularly where there is a presuit or administrative process or where you have identifiable concerns over preservation, you can send this letter to the company during the investigative phase of your case, even before the lawsuit is filed.

Later when the defendant claims you have not been cooperative or have failed to narrow the scope of discovery, your letter will demonstrate that in the beginning you sought a mutually agreeable and reasonable production protocol. Also, if the defendant ignores your reasonable requests and later destroys the documents and data, the court may uphold your spoliation claim even without an order specifically requiring preservation.

Seek a preservation order early, Make sure you preserve your spoliation claim by seeking a preservation order that includes electronic data. Courts have become more willing to consider reason able ex parte preservation orders issued when the plaintiff files the complaint and requiring immediate preservation. (8) Also, filing an early motion seeking reasonable preservation will place the defendant on notice that you are serious and reasonable about your intended discovery.

Of course, your primary goal is to preserve and obtain the needed data, not prosecute a spoliation claim. However, if the defendant implements a document destruction policy that obstructs your discovery, an early and detailed preservation order will be a powerful weapon later.

Demand meaningful conferences to discuss electronic discovery. In your electronic-discovery demand letter to the defendant, insist on scheduling a meaningful meeting on electronic data. "Meaningful" is a critical element. Meeting with opposing lawyers who have not yet begun to sweep for documents and data, or who feign an amazing lack of knowledge, will be a waste of time.

Company representative's who can answer fundamental questions about where and how the data can be found must attend these meetings. Bring your expert, too, and let him or her speak with the defense expert in the vernacular they best understand to make sure you are getting accurate information.

Don't be surprised if the defense refuses to meet or to bring the appropriate company personnel to the meeting. Ask the court to order the defendant to attend a meaningful conference on the scope and availability of electronic data. (9) Explain why such a procedure will save the court and the parties countless hours and expenses.

Focus your interrogatories and production requests. When your discovery requests are overly broad, you will face countless objections or thousands of useless documents--and a motion seeking to compel you to pay substantial costs. Developments in technology have allowed companies to store more information at lower cost, leading to "electronic warehousing" of large quantities of information, even data the defendants thought was destroyed or deleted. In most cases, you should take extra time to target your requests instead of seeking every document that exists.

Your goal is to narrow the scope of your intended discovery without reducing your chance of finding smoking-gun documents. As explained earlier, an e-data expert familiar with the defendant's industry can help.

One method is to use interrogatories asking the defendant to identify the specific databases it maintains on various subjects. Companies have different names for their databases; using the company's jargon will eliminate later confusion. Federal Rules of Civil Procedure 26(b)(1) and 26(a)(1) (B) support the argument that a company must provide a description of its databases. (10)

Because the initial requests--or the follow-ups--rarely will provide completely accurate or satisfying answers, it would be foolhardy to rely solely on interrogatories and production requests. Your initial queries must also ask the defendant to identify the company personnel who best know its databases and information-management systems.

It is helpful to include with your production requests a preliminary instructional section, specifically describing what you mean by terms such as "documents" and "data," as well as how you expect this information to be produced to you and in what format. You can find sample descriptions and instructions in practice guidelines or various multidistrict litigation (MDL) orders, (11) or your e-discovery consultant can help you construct them.

Or you could seek a broad definition of electronic data in the initial preservation order to help define and support your production requests. For instance, in the Propulsid MDL, the court's order defined the electronic information available. (12) You should revise your standard document definition to include specific references to databases, retention media, servers, desktops, laptops, and other foreseeable locations of e-discovery.

Production of a database alone may not fully explain how it is used. When seeking a database, request "datamaps" (also known as "schemas"). One expert has compared a datamap to the instructions for completing a tax return. While you can obtain a database (the data being analagous to numbers in the boxes of a tax return), unless you know precisely how "all the fields relate to each other (via the instruction book), you will not be able to use the database to its fullest. Also, request system documentation and database policies and procedures to learn how the company intended the database to be used, and by whom.

Make sure the defense produces the data in a readable and searchable format. Ultimately, you must ensure that you can actually read the data you obtain and that you can search, sort, and analyze the information produced. If the defendant maintains the data in a searchable format, get an agreement or court order that it will give you the data in that form. (13)

If you get the data in another format--that is not readable, searchable, or usable--meet with your opponent again before filing a motion to compel. Sometimes you can resolve simple problems--such as defense lawyers' failure to clearly communicate to the information technology staff what was to be produced--without motions. If the defense refuses to meet, you must involve the court.

Depose knowledgeable corporate representatives about e-data. These depositions will provide an overview and road map tot the potentially available e-discovery, and they can educate the court about how file company uses the databases in its day-to-day business to achieve its goals. The depositions will also provide evidence to defeat frivolous objections to your motions to compel better answers and production. Finally, they lay the foundation for your presentation to the jury explaining how databases are necessary for adequate safety surveillance, regulatory compliance, or negligence prevention.

Seek appointment of a court expert or special master. A line of cases permits the court to appoint an expert to examine the database or electronic data. (14) Moreover, under Federal Pule of Civil Procedure 53, the court may appoint a special master in complicated matters. A court-appointed special master or e-discovery expert will educate the court and may temper or eliminate a defendant's obstructionist behavior.

Avoid cost-shifting arguments. Once you have identified the databases or scope of electronic data you need, be prepared for the defense to argue that the requested production is unduly burdensome and overbroad and that if the court orders such production, the plaintiff should bear the costs. However; you can lay the groundwork for fighting such a motion by insisting on conferences, constructing reasonable and focused requests, seeking court assistance when a defendant resists discovery, and educating the court early about why this production will expedite the litigation.

The case law on cost-shifting is still evolving. (15) A New York district court's ruling last year in Zubulake v. UBS Warburg LLC represents the best-reasoned and most important case on the issue in the area of e-discovery. (16) This case is part of the courts' ongoing effort to apply universal discovery principles to litigation in the digital age.

Zubulake centers on whether data is "accessible" or "inaccessible." Be cautious in applying the ruling, since these terms can be misleading: Virtually all data is accessible--with enough effort. Moreover; the label "inaccessible" does not mean that the data need not be produced. Instead, it sets the boundary of when the court will even consider shifting costs to the requesting party.

The question is whether the "document is accessible if it is readily available in a usable format and reasonably indexed." (17) Characterizing general categories of electronic storage media, the Zubulake court concluded it would be wholly inappropriate to shift costs for producing e-mails stored on active mail file servers or on optical disks. The court ruled that this is accessible data and that traditional application of case law and court rules mandates production without cost-shifting. (18)

For accessible data, the standard is no different from one that applies to a request for hard copy--that is, the producing party pays all the costs of retrieving and producing the material.

For inaccessible data, such as backup tapes and recovery of fragmented or damaged data, the court developed a new seven-factor test:

1. The extent to which the request is specifically tailored to discover relevant information;

2. The availability of such information from other sources;

3. The total cost of production, compared to the amount in controversy;

4. The total cost of production, compared to the resources available to each party;

5. The relative ability, of each party to control costs and its incentive to do so;

6. The importance of the issues at stake in the litigation; and

7. The relative benefits to the parties of obtaining the information. (19)

The Zubulake court correctly recognized that when a requesting party seeks documents from the inaccessible categories of data, that party rarely will have a strong factual basis to prove to a degree of certainty specifically what will be found. Therefore, the court cannot require the requesting party to meet any greater standard than "reasonably calculated to lead to admissible evidence" in permitting discovery to proceed, despite the uncertainty of what will be found. (20)

Where there is a question whether the request is reason able or likely to yield relevant evidence, the Zubulake court suggested a sampling technique: The producing party must produce a reasonable sample of the requested material to determine the likelihood of finding relevant information. While the parties may argue about the adequacy of sampling, this is a tempered method for gathering e-discovery that otherwise could be time-consuming and costly. (21)

Be prepared to support your request for additional discovery. Once you have obtained a trickle of discovery, or the court has permitted sampling, work with your expert to harvest the information. Initial discovery will inevitably identify other sources of e-data that you want to pursue.

Expect the defense to argue that you have already received thousands of documents and that additional discovery would be unduly burdensome and unlikely to yield relevant evidence. Persuade the court to allow you to continue your search by explaining why the documents you have obtained so far have been valuable, that you have found gaps in the data, and how the production in electronic form has expedited the review and controlled costs.

New tactics

The Rules of Civil Procedure and case law are evolving to accommodate the issues being raised by widespread use of computer databases and electronic communications. The traditional "data dump" in discovery has given way to new obstructionist tactics: While defendants used to direct you to a warehouse to rummage through thousands of bankers' boxes, now they want to strictly limit your ability to inspect the contents of their electronic warehouse.

A defendant's ability to overwhelm you with objections and baseless claims that discovery is too difficult and costly will waste hours of the court's time and strain your finite resources. If you make the effort to prepare early in the case and attempt to negotiate reasonable parameters of discovery, you can save hundreds of hours without compromising your goal of finding the information you need


(1.) Kleiner v. Burns, No. 00-2160-JWL, 2000 WL 1909470, at*4 (D. Kan. Dec. 15, 2000) (citing Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 up to the Task?, 41 B.C.L. REV. 327, 333 (2000)).

(2.) For further discussion of metadata see Todd Flaming, Is Your Word Processor Spilling Secrets to Your Opponent?, TRIAL, Sept. 2002, at 69.

(3.) Bills v. Kennecott Corp., 108 F.R.D. 459, 461-62 (D. Utah 1985).

(4.) See Scheindlin & Rabkin, supra note 1, at 346-78.

(5.) The Federal Civil Rules Advisory Subcommittee on E-Discovery is currently considering amendments to the rules. Codifying preservation and disclosure requirements may help plaintiffs defeat obstructionist defense tactics. However, pro-company protectionist provisions may make obtaining necessary e-discovery from defendants more difficult.

(6.) FED. R. CIV. P. 26(a) (2) (B). For a lengthy discussion on electronic discovery and availability of computerized data, see MANUAL FOR COMPLEX LITIGATION (FOURTH) [section] 11.446 (2004).

(7.) See, e.g., Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94CIV.2120, 1995 WL 649934 (S.D.N.Y. Nov. 3, 1995); Santiago v. Miles, 121 F.R.D. 636, 638-41 (W.D.N.Y. 1988); see also McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001).

(8.) See, e.g., Wright v. Bayer Corp., No. 01-T-1206N (M.D. Ala. Nov. 9, 2001) (order of U.S. Magistrate Judge Vanzetta McPherson); Steiner v. Bayer Corp., No. 01-3172 (Ala. Montgomery County Cir. Ct. Oct. 31, 2001) (order of Circuit Judge William Shashy).

(9.) See, e.g., Bell v. Auto. Club, 80 F.R.D. 228, 233-34 (E.D. Mich. 1978), appeal dismissed without opinion, 601 F.2d 587 (6th Cir.), cert. denied, 99 S. Ct. 2839 (1979); see also In re Livent, Inc. Note-holders See. Litig., No. 98 Civ. 7161 VMDFE, 2003 WL 23254 (S.D.N.Y. Jan. 2, 2003).

(10.) Some federal district courts have begun implementing specific local rules aimed at e-discovery. For example, the U.S. District Court for New Jersey Local Rule 26.1 (d), "Discovery of Digital Information Including Computer-Based Information," contemplates the production of e-discovery, as well as a duty of counsel to identify sources of e-discovery available from their respective clients. For additional citations to local e-discovery rules, see the Federal Judicial Center, Materials on Electronic Discovery, at (last visited July 30, 2004).

(11.) See, e.g.,Pretrial Order No. 10, Production and Preservation of Defendants' Electronic Data, In re Propulsid Prods. Liab. Litig, MDL No. 1355 (E.D. La. Apt: 19, 2001), available at propulsid. (last visited July 30, 2004).

(12.) See id.

(13.) See, e.g., Anderson v. Cornejo, No. 97 C 7556, 2001 WL 219639 (N.D. Ill Mar. 6, 2001); Daewoo Elec. Co. v. United States, 650 F. Supp. 1003, 1006 (Ct. Int'l Trade 1986).

(14.) See. e.g., Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050, 1055 (S.D. Cal. 1999); United States v. Int'l Bus. Machs. Corp., 76 F.R.D. 97, 98-99 (S.D.N.Y 1977).

(15.) See, e.g., Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998); In re Bristol-Meyers Squibb Sec. Litig., 205 F.R.D. 437 (D.N.J. 2002); Rowe Entm't, Inc. v William Morris Agency, Inc., 205 F.R.D. 421, 429-32 (S.D.N.Y. 2002); McPeek, 202 F.R.D. 31; Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D. Mass. 1976).

(16.) 217 F.R.D. 309 (S.D.N.Y. 2003).

(17.) Id.

(18.) Id. at 318.

(19.) Id.

(20.) Id. at 323.

(21.) Id. For cases in which the producing party claimed enormous costs of producing e-discovery, see Byers v. Ill. State Police, No. 99 C 8105, 2002WL 1264004, at *11 (N.D. Ill. June 3, 2002); Murphy Oil U.S.A., Inc. v. Fluor Daniel, Inc., 52 Fed. R. Serv. 3d 168 (E.D. La. 2002); Linnen v. A.H. Robins Co., No. 97-2307, 1999 WL 462015, at *6 (Mass. Supra. Ct. June 16, 1999).

MICHAEL J. RYAN is a partner with Krupnick, Campbell, Malone, Buser, Slama, Hancock, Liberman & McKee in Fort Lauderdale, Florida.
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Author:Ryan, Michael J.
Date:Sep 1, 2004
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