E-discovery practice, theory, and precedent: finding the right pond, lure, and lines without going on a fishing expedition.
Although seeking electronic or computerized information through discovery in litigation is not exactly a new concept, courts and litigators alike are treating the "proper handling of electronic discovery" as "a new and developing area of law practice." (1) In defining what constitutes "proper handling" of electronic discovery, or "e-discovery" as it is sometimes known, courts have repeatedly determined that parties are not entitled to go on "fishing expeditions" in their search for electronically stored information. (2) Rather, the e-discovery amendments to the Federal Rules of Civil Procedure allow the courts, as one court analogized, "to determine the pond, the type of lure, and how long the parties can leave their lines in the water." (3) This article's purpose is to help attorneys gain more confidence in handling e-discovery by finding the right pond, the right lure, the right casting technique, and all the right tackle without wandering into dark waters.
As noted above, e-discovery is not a new concept, although there has certainly been a revitalization of e-discovery theory and precedent in the past few years. Perhaps the most significant reason for the revitalized focus on e-discovery involves the 2006 amendments to the Federal Rules of Civil Procedure that explicitly incorporated "electronically stored information" into the discovery standards in federal civil cases. (4) Another contributing factor is, of course, the reality that electronic communication and processing has taken a dominant role in business and personal relationships worldwide.
Just looking at internet and email use, the statistics are staggering. Worldwide email traffic consisted of 247 billion messages per day in 2009, and that figure is projected to double to 507 billion messages daily by 2013. (5) According to one survey, "business [email] users spend an average of 19 [percent] of the work day  sending and receiving email," which amounted to an estimated "(108) business email messages per day in 2009." (6) The volume of this traffic does not even include "non-communication" data such as word processing, computerized accounting, and similar business and personal functions. Commentators have recognized that at least 90 percent of business information is stored electronically today. (7)
Increased opportunities to create and store massive amounts of electronic information have driven the price of storage down immensely. (8) For instance, in 1990, it cost an average of $20,000 to store a typical gigabyte (9) of electronic information, but the cost to store the same amount of information today is less than a dollar. (10) However, with more information being stored, the volume of information to be preserved, collected, produced, and reviewed during litigation has grown. (11) This has created a converse increase in e-discovery costs. With junior associates at many law firms billing at over $200 per hour, the cost to review that same single gigabyte of data can exceed $30,000 in reviewing fees. (12) The Sedona Conference (13) explained, "[T]he huge cost differential between the $1 to store a gigabyte of data and the $30,000 to review it  act[s] as a driver in changing the traditional attitudes and approaches of lawyers, clients, courts and litigation support providers about how to search for relevant evidence during discovery and investigations." (14)
Perhaps the volume of electronic information available and the costs associated with reviewing and producing it are sufficient to spur litigators into becoming more e-discovery savvy. If not, perhaps the sanctions available for non-disclosure and spoliation of electronic evidence will motivate litigators to move past their hesitancy to practice e-discovery regularly. The Sedona Conference, in looking at achieving "quality" in the e-discovery process, discussed four reasons that litigators should assess the quality of their e-discovery process, "[s]anctions aside," including that (1) "[f]ailure to employ a quality e-discovery process can result in failure to uncover or disclose relevant evidence which can affect the outcome of litigation"; (2) "[a]n inadequate e-discovery process may allow privileged or confidential information to be inadvertently produced"; (3) "[p]rocedures that measure the quality of an e-discovery process allow timely course corrections and provide greater assurance of accuracy, especially of innovative processes"; and, (4) "[a] poorly planned effort can also cost more money in the long run if the deficiencies ultimately require that e-discovery must be redone." (15) But even if none of that motivates them to take a more serious look at e-discovery, perhaps litigators should consider that courts no longer recognize e-discovery inexperience (either on the litigator's or client's part) as an excuse for failure to produce or comply with discovery obligations (16) and that courts, generally, seem to find e-discovery disputes even more insufferable than traditional discovery disputes. (17)
This article discusses the formal rules and informal guidelines on e-discovery and examines recent judicial decisions that should continue to drive change in attorneys' and judges' attitudes and approaches regarding e-discovery. Part I of this article discusses e-discovery on a more general level, including the practical differences between e-discovery and traditional paper discovery, the history of courts' and commentators' perspectives on e-discovery, and courts' attitudes towards unprepared attorneys who litigate cases in which e-discovery is relevant. (18) Part II examines generally the duty to preserve information, including that in electronic format, and implementation of what has become commonly known as a "litigation hold" on destruction of information. (19) Part III discusses collection and production of electronic information on the part of the party responding to e-discovery requests, the "producing party." (20) Part IV turns the tables and looks at e-discovery from the perspective of the party seeking e-discovery (the "requesting party") from another party to the litigation or a third party. (21) Part V examines how attorneys and judges handle situations in which the producing party cannot or will not produce information, either because it has been destroyed or "spoliated" or because some legally recognized basis supports non-production. (22) This includes a discussion of those legally cognizable exceptions to producing e-discovery as well as the penalties associated with spoliation. (23) Finally, Part VI of the article examines a proactive approach to e-discovery by discussing appropriate advice to clients outside a litigation hold. (24)
I. FINDING THE POND: THE FOUNDATIONS OF E-DISCOVERY
A. SUMMARY OF E-DISCOVERY RULES: 2006 FEDERAL AMENDMENTS AND STATE COUNTERPARTS
In 2006, several Rules within the Federal Rules of Civil Procedure were amended to incorporate "electronically stored information" or "ESI." (25) Although many lawyers were not yet practicing e-discovery or were hesitant about e-discovery prior to these amendments, (26) the concept of e-discovery and its usefulness in many types of litigation should not have been news to litigators. As Wright, Miller, and Marcus explained in Federal Practice and Procedure, the foundation for electronic discovery was laid decades prior to the Federal Rules amendments. (27) Furthermore, the Sedona Conference first published its "Principles" on "Best Practices Recommendations & Principles for Addressing Electronic Document Production" in January 2004, (28) and the American Bar Association added electronic discovery to its Civil Discovery Standards in August 2004. (29)
In terms of the particular amendments made in 2006, Rule 34, which governs the production of "Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes," was amended to add "electronically stored information" to "documents" and "things." (30) Similarly, the amended Rules mandate that litigators think and confer about e-discovery much earlier during the litigation than perhaps has been the case with traditional discovery in the past. (31) For instance, Rule 26(f), which governs the parties' preliminary discovery planning conference, requires that litigators confer to discuss preservation of discoverable information and develop a proposed discovery plan that includes any issues relating to the disclosure or discovery of electronically stored information. (32) This planning conference and subsequent report goes so far as to include even the "form or forms in which [electronically stored information] should be produced[.]" (33) Following the parties' Rule 26(f) planning conference, the court will enter a Rule 16(b) scheduling order that outlines the case's discovery and general progression, including provisions "for disclosure or discovery of electronically stored information[.]" (34) Under the Rules, this scheduling order, which is sometimes preceded by a Rule 16(b) scheduling conference between the litigators and district court or magistrate judge, must be issued "as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared." (35) And, the parties' Rule 26(f) planning conference must occur at least 21 days before the Rule 16(b) scheduling conference with the court or before the court's Rule 16(b) scheduling order is due. (36) In some cases, the court may expedite the conferences under Rules 26(f) and 16(b), creating an even shorter timetable. (37)
In addition to getting the parties thinking and talking about e-discovery during the earliest stages of the litigation, the 2006 amendments also granted some protections against unreasonable e-discovery requests and other e-discovery problems. For example, Rule 26(b)(2)(B) protects a producing party from providing discovery of electronically stored information that is "not reasonably accessible because of undue burden or cost." (38) The party may simply refuse production of such information and, upon the requesting party's motion to compel production, the producing party must then show how the information is not "reasonably accessible." (39) Or the producing party can take affirmative steps by seeking a protective order under Rule 26(c) against production of information that is not reasonably accessible. (40) However, the court can still compel production if the requesting party can show good cause for why the information should be produced despite being not reasonably accessible. (41)
In addition to governing case progression, planning, and disclosures, Rule 26 also contains a "clawback" provision. The reality is that electronic information is more voluminous and can be more arduous to review than paper documentation. As the Sedona Conference has recognized, "While a few thousand paper documents are enough to fill a file cabinet, a single computer tape or disk drive the size of a small book can hold the equivalent of millions of printed pages." (42) As a result, there are certainly instances in which parties inadvertently produce privileged or otherwise-protected information. Rule 26(b)(5)(B) provides a certain amount of protection against this inadvertent production. (43) It provides:
If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. (44)
Meanwhile, Rule 37 governs failure to make discovery disclosures and sanctions and, as discussed further below, e-discovery presents a number of unique opportunities for a variety of sanctions. (45) However, Rule 37(e) protects parties who fail to provide electronic information through the discovery process "as a result of the routine, good-faith operation of an electronic information system." (46) This safe-harbor provision prevents the court from sanctioning a party or its counsel for a failure to produce information that is lost, for example, because electronic information is automatically deleted from the party's information technology system on a periodic basis.
Not only have the Federal Rules of Civil Procedure changed to accommodate e-discovery, but many states are following suit as well. As of September 2009, at least 23 states had adopted e-discovery rules that fall into three major categories: (1) those that have adopted most of the e-discovery provisions in the Federal Rules, (2) those that have taken the concepts from the Federal Rules and made limited changes, and (3) those that have adopted an approach taken by Texas prior to the Federal Rules amendments. (47) This is generally considered a positive trend because, among other reasons, one of the stated goals for amending the Federal Rules to include e-discovery provisions was to eliminate the possibility that states would act first and create "a patchwork of rules and requirements." (48)
States that have not adopted e-discovery rules may take guidance in handling e-discovery from a number of sources, including the Sedona Principles, (49) the National Conference of Commissioners on Uniform State Laws's Uniform Rules Relating to the Discovery of Electronically Stored Information, (50) and the Conference of Chief Justices's Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information. (51) Other jurisdictions without state-specific e-discovery rules have used the Federal Rules and cases for direct guidance in interpreting and applying the Federal Rules. (52) But, irrespective of whether a particular jurisdiction has adopted e-discovery rules, the predominance of e-discovery in many areas of litigation today makes it important to be familiar with the general concepts applicable to requesting and producing parties, including individuals and entities not parties to litigation. Simply because a jurisdiction has not adopted e-discovery rules does not support the misconception that e-discovery is more prevalent in federal litigation. (53)
Although South Dakota has not adopted e-discovery rules applicable in state-court litigation, an argument can be made that e-discovery should have been an important consideration for its litigators since 2004. In 2004, the South Dakota Legislature, through the South Dakota Supreme Court, (54) adopted the current South Dakota Rules of Professional Responsibility, which may be found in the Appendix to Chapter 16-18 of the South Dakota Codified Laws. (55) Among those rules is Rule 3.4, which governs "Fairness to Opposing Party and Counsel" and provides, in relevant part: "A lawyer shall not ... unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value [or] counsel or assist another person to do any such act[.]" (56) Following this rule are four comments, presumably made by the South Dakota Supreme Court. Pertinent to this Article is Comment 2, which provides that the rule "applies to evidentiary material generally, including computerized information." (57) No legislative (or, in this instance, judicial) history is available for this comment, nor were any cases located that discussed or applied the comment. However, as e-discovery becomes more pertinent to litigation in South Dakota state courts and unless or until the state adopts formal e-discovery rules, Rule 3.4 of the South Dakota Rules of Professional Conduct could play a role in the discipline of attorneys violating general e-discovery guidelines. (58)
B. DIFFERENCES BETWEEN TRADITIONAL AND E-DISCOVERY
Several differences exist between traditional, paper or hard-copy discovery and e-discovery, including one major difference this Article already discussed: the greater volume of material available to preserve, collect, and review in electronic format. (59) Because more information is available in a smaller "package," electronic data is more conducive to replication and duplicability. (60) Several commentators, including the Sedona Conference and Professor Grenig and attorney Gleisner in their e-discovery treatise, have identified various overlapping categories of differences between e-discovery and traditional paper discovery, including volume and duplicability. The validity of these differences has been generally well supported. (61) The Sedona Conference identified six categories of differences: volume and duplicability; persistence; dynamic, changeable content; metadata; environment-dependence and obsolescence; and, dispersion and searchability. (62) Meanwhile, Grenig and Gleisner identified three categories of differences: volume, retrieval, and translation. (63) No matter how they are classified, the differences between paper and electronic discovery are significant and complex.
First of all, electronic data is what the Sedona Conference termed "persisten[t]," stating:
Electronically stored information is more difficult to dispose of than paper documents. A shredded paper document is essentially irretrievable. Likewise, a paper document that has been discarded and taken off the premises for disposal as trash is generally considered to be beyond recovery. Disposal of electronically stored information is another matter altogether. (64)
As another practitioner explained:
When a paper document is shredded or burned, it is essentially irretrievable. Electronic data is more persistent. When you delete a document from a computer hard drive, all you are really doing is making that space on the drive available for future use. Until another file is written over the place where the file was, the "deleted" data is still there and can be retrieved. Such a repository of hidden, persistent data, results in an accumulation of data of which the average user has no direct knowledge, and over which the user can exercise no control. (65)
Indeed, many courts and commentators have recognized the problematic nature of electronic information's persistence. (66) However, the matter is not as simple as being difficult to "destroy" information. As the Honorable Lee H. Rosenthal remarked:
Electronic information is simultaneously permanent (deletion does not mean delete, although it is progressively more and more difficult to get to) and fragile, because if steps are not taken to freeze information it will change. The information on your computer changes every time you turn it on. Information in an electronic "folder" changes when you access the folder and when you close it again. All of these features are different than paper. (67)
Although it may be difficult to get "rid" of, in the traditional sense, the almost "invisible" nature of electronic data also lends itself to the practice of keeping data well beyond its useful time frame. (68) Unlike a file cabinet, desk drawer, or storage unit that becomes clogged with paper documents, many users do not notice the buildup of electronic data as readily. Thus, litigators evaluating electronically stored information may be forced to review a larger base of information, even if for the simple purpose of ruling out documents' relevance.
Electronic information's dynamic nature is also reflected in the information hidden behind the overtly visible document. Although a party producing discovery can easily print an email or word-processing document, there is more information available than may be readily apparent. As the Sedona Conference explained:
Computer information, unlike paper, has content that is designed to change over time even without human intervention. Examples include: workflow systems that automatically update files and transfer data from one location to another; backup applications that move data from one storage area to another to function properly; web pages that are constantly updated with information fed from other applications; and email systems that reorganize and purge data automatically. As a result, unlike paper documents, much electronically stored information is not fixed in a final form. More generally, electronically stored information is more easily and more thoroughly changeable than paper documents. Electronically stored information can be modified in numerous ways that are sometimes difficult to detect without computer forensic techniques. Moreover, the act of merely accessing or moving electronic data can change it. For example, booting up a computer may alter data contained on it. Simply moving a word processing file from one location to another may change creation or modification dates found in the metadata. In addition, earlier drafts of documents may be retained without the user's knowledge. (69)
Some of this "dynamic" information is known as "metadata," which is discussed further below, including "application" and "system" metadata. (70) Metadata is the information that many computer applications keep about each file that is created, and the user typically lacks access to the metadata. (71) Such information might include creation and editing dates, author and user names, comments, and historical data identifying specific document modifications. (72) The Sedona Conference gave examples of when metadata might be useful in litigation, including for purposes of authenticating evidence and establishing material facts (such as when files were accessed in a trade-secrets case). (73) However, metadata can also be inaccurate, and litigators must therefore be cautious in relying on metadata in appropriate circumstances. (74) For these reasons, some courts have been willing to give metadata great evidentiary weight while others have been wary to recognize the usefulness of metadata. (75)
Thus, electronically stored information is voluminous, persistent, dynamic, and difficult to access. However, it is also highly portable--it can be sent instantly to another country or continent and stored within seconds on a drive the size of a stick of Chapstick (or smaller). (76) But perhaps more importantly and unlike most sources of paper data, electronically stored information is constantly evolving (77) and, in many instances, may be incomprehensible without its particular hardware or software system. (78) For these reasons, the differences between traditional and e-discovery are numerous and significant and should help litigators in changing their attitudes towards the complexity and necessity of e-discovery. As one federal court summarized, well before the 2006 Federal Rules amendments:
Computer files, including emails, are discoverable.... However, the Court is not persuaded by the plaintiffs' attempt to equate traditional paper-based discovery with the discovery of email files.... Chief among these differences is the sheer volume of electronic information. Emails have replaced other forms of communication besides just paper-based communication. Many informal messages that were previously relayed by telephone or at the water cooler are now sent via email. Additionally, computers have the ability to capture several copies (or drafts) of the same email, thus multiplying the volume of documents. All of these emails must be scanned for both relevance and privilege. Also, unlike most paper-based discovery, archived emails typically lack a coherent filing system. Moreover, dated archival systems commonly store information on magnetic tapes which have become obsolete. Thus, parties incur additional costs in translating the data from the tapes into useable form. (79)
As such, although many litigators may be hesitant about or resistant to e-discovery (80) (especially those litigators whose practices developed during an era of paper discovery), it is past the time to become proficient in understanding the e-discovery process from all perspectives: plaintiff, defendant, client, attorney, requesting party, producing party. As one commentator suggested, "The concept of electronic discovery is still somewhat intimidating to many attorneys, but those who have learned to implement electronic discovery best practices are enjoying the advantages it offers, which include greater control over document review and production processes as well as significant cost reductions." (81)
II. ANCHORING THE BOAT: THE DUTY TO PRESERVE AND IMPLEMENTING A "LITIGATION HOLD"
It would be impractical, if not impossible for many clients (both corporate and individual) to retain all information, paper and electronic, for an indefinite period of time. Think about corporate clients with upper-level executives tapping out messages on their BlackBerries, entry-level employees sending instant messages to one another, and every type of document and communication in between. As a result, clients and their counsel need to understand when the duty to retain information, particularly electronically stored information, is triggered and how far that duty extends.
A. TRIGGERING THE DUTY TO PRESERVE EVIDENCE
Although there are not extensive numbers of e-discovery decisions from the United States Court of Appeals for the Eighth Circuit or South Dakota federal district courts or state courts, many of the general principles involving e-discovery are uniform across federal courts nationwide. Many courts hearken to the series of decisions in Zubulake v. UBS Warburg, LLC (82) from the United States District Court for the Southern District of New York, which many consider seminal in the area of e-discovery. (83) In another potentially groundbreaking decision from the same judge and court as the Zubulake opinions, Judge Shira Scheindlin explained:
Courts cannot and do not expect that any party can meet a standard of perfection [in e-discovery]. Nonetheless, the courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party. (84)
The court's expectation is fostered by a "need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth...." (85)
Thus, in order to advance the search for the truth, courts have determined that a duty to preserve evidence is triggered when it is known or should be known that a document may be relevant to pending or reasonably anticipated litigation. (86) It has been determined that a plaintiff's duty to preserve is more often triggered before litigation commences because it is the plaintiff who in fact commences litigation. (87) However, although the filing of a complaint may trigger the duty, the duty to preserve evidence may also be triggered well in advance of litigation. (88) Rather, the standard is when litigation is "reasonably anticipated." (89) However, because the "undeniable reality is that litigation 'is an ever-present possibility' in our society ... the duty to preserve relevant documents should require more than a mere possibility of litigation." (90) When a party does not owe a duty to preserve evidence, the consequence is simple enough: evidence that is lost or destroyed is not spoliated, and the party that has failed to produce such evidence will not be sanctioned. (91)
Whether a party was reasonable in failing to anticipate litigation is determined on the facts of each particular case. (92) However, in its Principles, the Sedona Conference outlined factors that courts may use in determining whether litigation was reasonably anticipated in a given case. (93) Those factors include (1) the nature and specificity of the complaint or threat; (2) the party making the claim; (3) the position of the party making the claim; (4) the business relationship between the accused and accusing parties; (5) whether the threat is direct, implied, or inferred; (6) whether the party making the claim is known to be aggressive or litigious; (7) whether a party who could assert a claim is aware of the claim; (8) the strength, scope, or value of a potential claim; (9) the likelihood that data relating to a claim will be lost or destroyed; (10) the significance of the data to the known or reasonably anticipated issues; (11) whether the company has learned of similar claims; (12) the experience of the industry; (13) whether the relevant records are being retained for some other reason; and, (14) press and/or industry coverage of the issue either directly pertaining to the client, or of complaints brought against someone similarly situated in the industry. (94)
Numerous courts have examined whether producing parties in particular cases have owed a duty to preserve evidence. For example, in Sampson v. City of Cambridge, (95) the plaintiff's counsel sent a letter to the prospective defendant stating that "all electronic and non-electronic evidence related to this complaint must be preserved" and attached a copy of the proposed complaint. (96) The plaintiff's counsel sent this letter nearly two months before filing her complaint. (97) The United States District Court for the District of Maryland determined that it was "clear" that the defendant's duty to preserve evidence relevant to the anticipated litigation was triggered no later than the date on which it received the evidence-preservation letter from the plaintiff's counsel. (98) The court stated, "[Upon receiving the evidence-preservation letter], although litigation had not yet begun, defendant reasonably should have known that the evidence described in the letter 'may be relevant to anticipated litigation.'" (99) Thus, the duty to preserve is triggered in more obvious ways in some cases than in others and, in those cases, courts have no trouble dispatching with the issue and moving on to the substance of the spoliation issue. (100)
Likewise, both formal complaints and informal internal complaints can constitute reasonable notice that litigation is on the horizon. For example, in the employment context, many courts have determined that an employee's filing of a formal complaint with a government agency, such as with the Equal Employment Opportunity Commission ("EEOC"), (101) triggers the duty to preserve. (102) For example, in Scalera v. Electrograph Systems, Inc., (103) the court determined that the employer's duty to preserve was triggered when the employee filed her discrimination charge with the EEOC. (104) However, the court also refused to determine that the employer's duty to preserve had been triggered by: (1) bare knowledge that the employee was disabled, (2) knowledge that the employee needed an accommodation in the form of a hand rail, or (3) internal speculation that the employer had caused an injury to the employee by not installing the hand rail in question. (105) Despite sometimes requiring an "event" to trigger the duty to preserve, such as the filing of a formal complaint, a duty to preserve may also be triggered by an informal complaint that an employee makes internally, especially when management or other upper-level employees act as though or believe litigation is likely to ensue. (106)
Pre-litigation demand letters can also trigger the duty to preserve. For example, the District of Maryland has determined that "[d]emand letters stating a claim may be sufficient to trigger an obligation to preserve." (107) In that case, Goodman v. Praxair Services, Inc., (108) the letter in question noted that the prospective plaintiff had consulted two attorneys about the matter and that if "forced to litigate," the prospective plaintiff could receive damages in excess of the disputed contract amount. (109) In Goodman, the prospective plaintiff's letter was sufficient to trigger the duty to preserve. (110) Likewise, in Asher Associates, LLC v. Baker Hughes Oilfield Operations, Inc., (111) the United States District Court for the District of Colorado determined that a letter from the prospective plaintiff's counsel triggered the duty to preserve because it discussed failed attempts to resolve the dispute, referred to "damages" already accrued and continuing to accrue, provided a damages calculation, demanded immediate payment, and identified specific claims for relief that the plaintiff would assert if it initiated litigation. (112) However, the same court earlier determined that while "under different circumstances, a demand letter alone may be sufficient to trigger an obligation to preserve evidence," an "equivocal" letter that did not demand preservation of evidence, did not threaten litigation, and "hinted at the possibility of a non-litigious resolution" did not trigger that duty. (113)
Another example of an event that can trigger a party's duty to preserve involves an informal notice of suit that occurs prior to litigation being commenced. In Nucor Corp. v. Bell, (114) the defendant, John Bell, had been a general manager for the plaintiff, Nucor. (115) In March of 2006, Bell left Nucor to work for a competing company, and Nucor eventually sued Bell for trade secrets violations. (116) Beginning shortly after his resignation, Nucor warned Bell that he owed obligations to Nucor with respect to issues Nucor considered trade secrets and that Nucor would "take appropriate action" if he violated those duties. (117) Bell admitted that he understood that "appropriate action" meant Nucor would sue him. (118) In determining whether Bell owed a duty to preserve certain information on a portable medium (a thumb drive) and on a laptop that he had destroyed in or around September of 2006, the court had no trouble concluding that Bell indeed owed a duty of preservation because he "anticipated (or reasonably should have anticipated) litigation with Nucor by late Summer 2006, before he destroyed the [electronic medium]." (119)
B. IMPLEMENTING A LITIGATION HOLD
If a litigant's (120) duty to preserve evidence has been triggered, irrespective of the event triggering the duty, that litigant must implement a freeze on destruction of paper and electronic information, something known as a "litigation hold." (121) Indeed, the court in Pension Committee of University of Montreal Pension Plan v. Banc of America Securities (122) noted that "the first step in any discovery effort is the preservation of relevant information." (123) In order to achieve such preservation, counsel for the litigant should "(1) issue a litigation hold at the outset of litigation or whenever litigation is reasonably anticipated, (2) clearly communicate the preservation duty to 'key players,' and (3) 'instruct all employees to produce electronic copies of the their relevant active files' and 'separate relevant backup tapes from others.'" (124) As several courts have recognized, "[o]ne of the primary reasons that electronic data is lost is ineffective communication with information technology personnel." (125)
Although it may seem that the client is in a better position to understand what information is available and to isolate that information, "[t]he preservation obligation runs first to counsel" (126) and counsel's obligation is "heightened in this age of electronic discovery." (127) Even after the litigation hold is in place and the litigant and its counsel have made "certain that all sources of potentially relevant information are identified and placed 'on hold,'" "counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched." (128) "Thereafter, the duty to preserve discoverable information persists throughout the discovery process; a litigant must ensure that all potentially relevant evidence is retained." (129) As the court in Richard Green (Fine Paintings) v. McClendon, (130) quoted:
Indeed, for the current 'good faith' discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search. (131)
Thus, based upon commentators' advice and courts' analysis of the duty to preserve, competent counsel will take the following steps in implementing a litigation hold, after first recognizing when a litigation hold is necessary (that the duty to preserve has attached): (1) gathering information about the client's documentation process, both paper and electronic, (2) defining the scope of information to be preserved and collected, and (3) advising the client on the details and processes to be undertaken to effect the litigation hold through a formal, written litigation-hold notice.
1. Gathering Information about the Client's Documentation Processes
Because this article has already discussed recognizing when the duty to preserve has attached, the next step in the analysis involves gathering information about the client's documentation processes. (132) If you are unfamiliar with or intimidated by the details of creating, modifying, storing, deleting, or collecting electronically stored information, the best starting place may be some education on those processes. Consider the different ways in which electronically stored information is created, altered, stored, transferred, and destroyed. Learn about different hardware and software options, including the forms in which data can or must be produced. Once you have a comfortable working knowledge of technology issues generally, become familiar with your client's particular electronic information systems, the associated players (information technology (133) department, network managers, or unofficial technology personnel), and the users and sources of electronic information that may be discoverable.
It is important to bear in mind that many commentators and bar organizations recognize that an attorney's ethical duties, particularly those of competence and diligence, are applicable in the e-discovery context. As one author noted, "Commentators generally accept that the duty of competence applies to e-discovery issues because ... '[a] vital component of competency is reasonable diligence in fulfilling an attorney's duties in a case, whatever they may be.'" (134) While few courts have addressed an attorney's "competence" in e-discovery matters, the duty of competence is almost surely implicated in the edict within the Zubulake opinions to "become fully familiar with [the] client's document retention policies, as well as the client's data retention architecture." (135) Similarly, "[a]n attorney with inadequate technical [knowledge] cannot act with ... diligence" (136) because, "[if the] lawyer is not thoroughly familiar with a client's network and electronic document management system, then there may be many instances where a lawyer does not answer a tribunal accurately, or is tempted to guess at an answer." (137) Therefore, it is imperative that the attorney have a working knowledge of general technology issues that can arise in various e-discovery contexts for the cases he or she handles and that the attorney be intimately familiar with the client's particular processes and technology infrastructure.
This familiarity should include learning all possible aspects of the client's systems, users, and processes. The attorney should be familiar with who the significant technology players are. A competent and diligent attorney should ask:
* Who within the organization (and even with individual clients) has rights to create, alter, transfer, store, or destroy electronically stored information?
* Who are the key witnesses in the case, what role does each play with electronically stored information, and who are key technology users generally?
* What types of technology are available, including brand and function of software and hardware, types of electronic communication (internal and external email, fax, instant messaging, text messaging, and other communication via handheld devices), disaster-recovery procedures, and archiving and storage?
* Does the client have a document-retention policy, does that policy include electronically stored information, and is the policy sufficient to have preserved information to date that may be discoverable?
* What is the information-destruction process, including clean-out or "janitor" programs for email and internet use?
* What information might be "inaccessible" (138) and why?
Keep these items in mind not only for purposes of information you will be required to produce to the opposing party, but also for purposes of pursuing your client's own claims and defenses. (139)
2. Defining the Scope of Data to be Preserved
Once the attorney is familiar with what information the client has and how to obtain it, he or she must define the scope of data to be preserved. Especially for larger corporate clients, it would be impractical, if not impossible, to preserve all data the client creates until the litigation is complete. Rather, the attorney needs to determine what information is relevant or discoverable to the particular case under the broad standards set forth in Rule 26. (140)
Determining the scope of information to be preserved is dependent on the nature of the case at issue and which party the attorney represents. For instance, plaintiffs and their counsel ought to have performed a fairly extensive investigation prior to filing suit (141) and, in that investigation, should have pinpointed the time frame of relevant data, the key issues, key documents and information, and potential witnesses and technology users. Defendants and their counsel should look to the complaint and other initial documents, if a formal complaint has been filed with a government agency or if a lawsuit has already been filed, or internal documentation supporting the client's reasonable anticipation that litigation may commence. That documentation should help counsel determine the allegations and issues at bar, the relevant time frame of documentation necessary to preserve, and key players and technology users. The same concepts are relevant for counsel representing a party having received a third-party subpoena. The attorney should discuss key factual issues, witnesses, and documents with the client extensively and should use all of these resources to refine the time frame, key technology users, and available technology sources as narrowly as possible without risking spoliation. (142)
An example of how courts view the scope of information to be preserved is found in the United States District Court for the District of Minnesota's decision in Best Buy Stores, L.P. v. Developers Diversified Realty Corp. (143) In that case, Best Buy sued various landlords and property managers related to its stores for breach of lease agreements and other claims related to insurance issues. (144) In an earlier lawsuit, Best Buy had produced a database that the defendants in the instant case sought discovery of. (145) In analyzing the e-discovery dispute pertaining to that database, the court recognized that "Best Buy should have been on notice that [the] defendants would seek discovery of ... [the] information" in the database and, thus, its duty to preserve had been triggered. (146) However, the court also recognized that the database was so extensive that it "would have been potentially relevant to virtually any litigation involving Best Buy" and that the scope of discovery did not require Best Buy to produce such a broad base of information. (147) Therefore, in assessing the duty to preserve, counsel should keep the proper scope of preservation in mind to alleviate the client's burden and expense in preserving all data.
3. Ensuring Uniformity and Enforcement of the Litigation Hold through Solid Client Communications
The third step in implementing a litigation hold is ensuring that all relevant individuals associated with the client, particularly with corporate or other organizational-type clients, are advised of the litigation hold. This is accomplished through a written notice of the litigation hold or a "litigation-hold letter," and such a letter should be standard practice for attorneys in litigation today, even if it is not anticipated that e-discovery will be involved. Important considerations for a litigation-hold letter include the letter's content, what players at the client's organization will receive the letter, and documentation of all steps in the litigation hold. As the Sedona Conference reasoned, a litigation hold is most effective when it:
(a) Identifies the persons who are likely to have relevant information and communicates a preservation notice to those persons;
(b) Communicates the preservation notice in a manner that ensures the recipients will receive actual, comprehensible and effective notice of the requirement to preserve information;
(c) Is in written form;
(d) Clearly defines what information is to be preserved and how the preservation is to be undertaken; [and,]
(e) Is periodically reviewed and, when necessary, reissued in either its original or an amended form. (148)
The first consideration, then, is what to include in the litigation-hold letter. As should hold true with any "form" document an attorney might use in litigation, the content of a litigation-hold letter will vary in every case. The letter should notify recipients of the need to preserve all documentation, including paper and electronically stored information, and it should contain a description of the types of documents subject to the hold with enough detail that each recipient can properly implement the hold as to documents within his or her control. (149) The letter should not, however, include so much detail as to become under-inclusive and run the risk of spoliating discoverable evidence. (150) As the Sedona Conference recommended in its Principles, the letter should:
(i) describe the subject matter of the litigation and the subject matter, dates, and other criteria defining the information to be preserved; (ii) include a statement that relevant electronically stored information and paper documents must be preserved; (iii) identify likely locations of relevant information (e.g., network, workstation, laptop or other devices); (iv) provide steps that can be followed for preserving the information as may be appropriate; and (v) convey the significance of the obligation to the recipients. (151)
Counsel should be sure to clarify that the litigation hold is not so broad as to include preservation of all documentation or so broad as to require suspension of the client's normal document-retention policy, including routine destruction of records that are not subject to the hold. (152) For example, it is important to define the timeframe of relevant documents when looking at the scope of information to be preserved and to communicate the proper timeframe to the client because it will not be required to hold onto outdated records that are not subject to the hold and would otherwise be destroyed pursuant to the client's routine document-management system.
An attorney drafting a litigation-hold letter should be cautious in phrasing the letter to avoid reference to privileged material, including any evaluation of evidence, claims, or defenses because the letter itself may not be considered privileged in all cases. Generally, the specific contents of a litigation-hold letter are considered privileged under the attorney-client privilege and the work-product doctrine. (153) The rationale for considering such letters privileged, aside from their specific nature as an attorney-client communication, is that compelling production of litigation-hold letters "could dissuade other businesses from issuing such instructions in the event of litigation." (154) However, litigation-hold letters are considered directly discoverable in cases when spoliation of evidence has been proven, including in cases where breach of the duty to preserve is merely negligent. (155)
Likewise, courts are increasingly willing to disclose the contents of a litigation-hold letter indirectly, although not requiring production of the letter itself. For example, in In re eBay Seller Antitrust Litigation, (156) the United States District Court for the Northern District of California determined that eBay had made an "adequate showing" that its litigation-hold letters were protected under the attorney-client privilege and work-product doctrine. (157) However, the court also determined that eBay's argument that those privileges "foreclose[d] any inquiry into the contents of" its litigation-hold letters was "not tenable." (158) Instead, the court reasoned:
Although plaintiffs may not be entitled to probe into what exactly eBay's employees were told by its attorneys, they are certainly entitled to know what eBay's employees are doing with respect to collecting and preserving ESI. Furthermore, because it would neither be reasonable nor practical to require or even to permit plaintiffs to depose all 600 employees, it is appropriate to permit plaintiffs to discover what those employees are supposed to be doing. Even though such inquiry may, indirectly, implicate communications from counsel to the employees, the focus can and should be on the facts of what eBay's document retention and collection policies are, rather than on any details of the [litigation-hold letters]. Thus, while plaintiffs should not inquire specifically into how the [litigation-hold letters] were worded or to how they described the legal issues in this action, plaintiffs are entitled to know what kinds and categories of ESI eBay employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end. (159)
Although the court did not require eBay to turn over its litigation-hold letters in physical format, it did require eBay to disclose what its document-retention and document-collection policies were, what kinds and categories of electronically stored information counsel instructed eBay employees to preserve and collect, and the means by which those employees were instructed by counsel to effect preservation and collection. (160) In other words, eBay was essentially required to disclose the entire contents of the litigation-hold letters without having to hand the letters over in tangible format. (161)
Thus, there can be circumstances under which a party and its counsel will be required to disclose a litigation-hold letter, either in physical format or through disclosure of its contents. However, a competent attorney should also remember that disclosure of a litigation-hold letter can be beneficial in certain circumstances. (162) As two commentators recently opined, "No matter how prepared an organization is, it will inevitably face accusations that its electronic discovery efforts were below par. To show such claims are baseless, it will often be necessary to rely on information that the organization deems privileged." (163) Indeed, it may be that an organization will find revelation of its litigation-hold letter's details helpful in demonstrating that its efforts in properly preserving and producing documentation were reasonable. (164) For this reason, a party and its counsel might consider the litigation-hold letter to be a tool in defending against allegations of spoliation. However, whether production of a litigation-hold letter is compelled through the court or disclosed voluntarily, the possibility that its contents will be disclosed at some point should make a savvy attorney more cautious in drafting the letter.
In addition to the scope of information to be preserved and the means by which it will be preserved and segregated, a litigation-hold letter should also inform recipients of the consequences of failing to adhere to the litigation hold. The explanation of consequences should describe the impact on the organization as a whole, as well as to each particular individual who fails to abide by the hold's terms. The explanation of consequences should also explain what actions and omissions would be considered a violation of the hold, including transfer, modification, loss, or destruction of pertinent information. Furthermore, the litigation-hold letter should seek a response from each recipient certifying that he or she has complied with the terms of the litigation hold. (165)
Once an attorney has drafted a litigation-hold letter that satisfies the particular case's needs, the next major consideration involves creating an appropriate list of recipients. There are competing schools of thought in this regard. The first perspective, which is usually the attorney's perspective, is that the letter should go to as many people in the client's organization as possible. In fact, under this perspective, it may even be appropriate to send the litigation-hold letter to third parties because the duty to preserve extends to all documents within the client's "control," even if external to the client-organization itself. (166) The reason this perspective benefits counsel is because the duty to preserve documents "runs first to counsel" (167) and, as discussed further below, counsel's conduct in implementing a litigation hold is scrutinized alongside the client's and is equally sanctionable in spoliation cases. Under this reasoning, it is plausible that the larger the recipient pool, the smaller the risk of accidental spoliation related to the client's failure to communicate the terms of the litigation hold to all key employees.
The second perspective in creating the recipient list for the litigation-hold letter, which is often the client's perspective, is to limit transmission of the letter to a minimal number of key individuals within the organization. Particularly from a large client's point of view, minimizing the recipient pool avoids problems associated with employees' awareness that the organization is a party to litigation, including disruption in the workplace, rumor spreading, low morale, and the like. However, there may also be an advantage to limiting the recipient pool in cases when other unidentified employees may have reason to destroy or otherwise hide evidence or disrupt the preservation process. (168)
Under either perspective, a competent attorney should not rely on a single contact person to facilitate notice of the litigation hold or to effect the preservation process, absent situations with sole-proprietorship or individual clients. At a minimum, the litigation-hold letter should be sent to IT directors and staff, data custodians, and all key witnesses. As the Sedona Conference advised:
The recipient list will include persons responsible for maintaining information potentially relevant to that litigation or investigation. The list may also include the person or persons responsible for maintaining and operating computer systems or files, including back-up and archiving systems, which may fall within the scope of the preservation obligation. The notice does not need to reach all employees, only those reasonably likely to maintain documents relevant to the litigation or investigation. In many cases, the notice should be sent to a person or persons responsible for maintaining and operating computer systems or files that have no particular custodian or owner but may fall within the scope of the preservation obligation. (169)
The means by which the litigation-hold letter is communicated to designated recipients will depend on the nature of each case, but the attorney should look at several avenues to find the one most conducive to providing timely, "prominent notice" to recipients. (170) The Sedona Conference also advised that, depending on the duration and scope of the litigation in question, a diligent attorney may want to repeat the notice detailing the terms of the litigation hold on several occasions. (171) This would be particularly appropriate for client-organizations with high employee turnover.
A recent example of how courts examine counsel's efforts in effecting a litigation hold is found in the Pension Committee case. (172) In that case, the plaintiffs' counsel contacted their client shortly after being retained to handle the case. (173) Plaintiffs' counsel telephoned and emailed the plaintiffs and "distributed memoranda instructing plaintiffs to be over, rather than under, inclusive," and counsel specifically outlined that "emails and electronic documents should be included in the production." (174) Counsel explained in its communications that the documents to be preserved were necessary for purposes of drafting the complaint, and counsel did not direct that the search be limited to those documents. (175)
Despite sending notice to many recipients through several means of communication, and despite counsel's direction that individuals effecting the search be over-inclusive, the court determined that counsel's communications did "not meet the standard for a litigation hold." (176) The court explained:
It does not direct employees to preserve all relevant records-both paper and electronic-nor does it create a mechanism for collecting the preserved records so that they can be searched by someone other than the employee. Rather, the directive places total reliance on the employee to search and select what that employee believed to be responsive records without any supervision from Counsel. (177)
Rather, the Pension Benefits case demonstrates that a sufficient litigation-hold letter must be specific in directing what information to preserve and must provide a mechanism for preservation and that counsel must be directly involved in the collection and review process. (178)
In addition to drafting a solid litigation-hold letter and creating an appropriate recipient list, attorneys must take all necessary steps to document the litigation-hold process, including how they implemented the litigation hold, communicated it to the client, and preserved and collected documentation. (179) Documentation should include:
* The date and by whom the hold was initiated and possibly the triggering event;
* The initial scope of information, custodians, sources, and systems involved;
* Subsequent scope changes as new custodians or data are identified or initial sources are eliminated;
* Notices and reminders sent, confirmations of compliance received (if any) and handling of exceptions;
* Description as to the collection protocol, persons contacted, and the date information was collected;
* Notes (at least as to procedural matters) from any interviews conducted with employees to determine additional sources of information; and,
* Master list of custodians and systems involved in the preservation effort. (180)
Solid documentation of what steps counsel took may be the only defense against sanctions in the event that spoliation takes place that is clearly outside the attorney's control. Counsel should keep a master list with names and contact information for recipients, date and time of transmission and receipt (including means of transmission), when and how each recipient certified compliance, and what data each recipient potentially possesses and actually turns over to counsel for review.
Numerous courts have examined parties' and counsel's efforts with respect to the implementation of a litigation hold and preservation of relevant documents and have often concluded that those efforts were legally insufficient. For instance, in Scalera, the court determined that the defendant-employer's duty to preserve documents had been triggered by the employee's filing of an EEOC charge. (181) In that case, the defendant's attorney received the EEOC charge and then "spoke to those employees who would have dealt with [the employee] while she was employed [with the company]." (182) The attorney testified that she "'spoke to' six employees ... and told [them] 'to retain any relevant documents."' (183) After issuing that instruction, the attorney, "collected copies of documents from Human Resources, where she believed all relevant documents would be kept" and learned from the company's IT employees that "all documents, including emails were backed up and that [the company] did not have a document destruction policy. Knowing of these back-ups in place, [the attorney] was confident that [the company] had retained the necessary documents." (184)
The court in Scalera determined that "although [the attorney] communicated the preservation duty verbally to most of the 'key players,' there was no effective timely communication with [the IT manager] and others in the IT department." (185) The court also determined that the attorney's instructions should have been "clearer" and that "[m]ore effective communication might also have led" to the fact that some potentially relevant electronically stored information was not backed up. (186) This "[m]ore effective communication," (187) the court reasoned, would then have led some of the key collectors of data to have been instructed "to 'produce electronic copies of all their relevant active files,' rather than simply rely on the ESI backup system." (188) Similarly, the court determined that the attorney had not identified all appropriate "key employees[.]" (189)
Furthermore, in Richard Green, the requesting party sought electronically stored information, which the producing party alleged that it had produced in total. (190) Following some discussion regarding whether all relevant information had indeed been produced, the requesting party filed a motion to compel, and the court ordered production and certification that the producing party had complied. (191) About three weeks later, the producing party finally produced an Excel spreadsheet, in paper format, and later produced three more versions (with significant differences) of the same spreadsheet, none of which had been previously produced. (192) These disclosures prompted the requesting party to file a motion for sanctions, and that motion prompted the producing party to reveal that the information originally on her computer had been transferred to compact discs and that she had not provided these CDs to her counsel until after the requesting party filed its motion to compel. (193)
In this context, the Richard Green court noted that "[t]he preservation obligation runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction" and that this obligation "is 'heightened in this age of electronic discovery.'" (194) The court determined:
There is no question that [the producing party's] counsel failed to meet these discovery obligations. Unless [the producing party] brazenly ignored her attorney's instructions, counsel apparently neglected to explain to her what types of information would be relevant and failed to institute a litigation hold to protect relevant information from destruction. Moreover, despite numerous representations to the contrary, it is highly unlikely that counsel actually conducted a thorough search for relevant documents in [the producing party's] possession in connection with their initial disclosure duties or in response to the plaintiff's first document request. If that had been done, counsel certainly would have found the spreadsheet from [the producing party's] personal computer files. (195)
These two cases are illustrative of the burdens that courts place on counsel to effect and ensure compliance with an appropriate litigation hold. If they ever existed, the days when counsel could rely on clients to identify, gather, review, and produce discoverable documentation are gone. Instead, attorneys must take a more proactive approach to ensuring that both counsel and the client comply with their mutual duty to preserve relevant document evidence, no matter whether paper or electronic.
III. CASTING A LINE: THE PRODUCING PARTY'S COLLECTION AND PRODUCTION OF ELECTRONIC INFORMATION
Once litigation has commenced on an issue for which a client owes a duty to preserve evidence, at least some of the data that counsel and client have preserved will eventually be produced to the other parties. If the litigation is in federal court or a state with discovery rules similar to the Federal Rules, the parties must begin thinking about and discussing discovery issues and, in particular, e-discovery issues immediately because of the parties' Rule 26(f) planning conference and report and the court's Rule 16(b) scheduling order. As noted above, these obligations include development of a proposed discovery plan that includes any issues relating to the disclosure or discovery of electronically stored information, including the "form or forms in which electronically stored information should be produced," (196) and the case's discovery and general progression, including provisions "for disclosure or discovery of electronically stored information." (197)
Above all else, e-discovery should be organized, and many courts have insisted on having a strong, organized discovery plan developed through early and extensive communication between the parties. (198) For example, in Beard Research, Inc. v. Kates, (199) a Delaware state court cautioned the parties:
[I]f the parties do not focus on the handling of e-discovery in the early stages of a case, the Court is not likely to be sympathetic when, for example, one party later complains that stringent measures were not instituted voluntarily by her adversary to ensure that no potentially relevant information was lost. Rather, instead of holding a party to a stringent standard that might have been appropriate if established earlier in the case, the Court probably will apply an approach it deems reasonable, taking into account the insights provided by the case law and some of the guidelines and principles developed by various respected groups that have studied the challenges of electronic discovery. (200)
Similarly, the United States District Court for the Eastern District of Wisconsin chided the parties for failing to discuss the issues pertinent to e-discovery sufficiently, stating:
[W]hat is more relevant to the court's analysis is the fact that it appears that the parties have had very few discussions with the goal reaching a middle ground [on e-discovery issues], rather than extremes. Neither party has submitted anything to the court that indicates the parties discussed in detail any compromises regarding a myriad of issues that in the final analysis are better left for resolution by the parties, rather than the court. Simply put, open and candid discussions need to begin forthwith regarding the completion of discovery of the defendants' ESI. Nothing is to be gained by the distraction of the parties' resources through invoking the court to police discovery disputes. (201)
Instead, the court went so far with its frustration as to instruct the parties on some of the issues they needed to consider, stating:
While not intended to be all inclusive, the parties need to contemplate: (1) what different methods could be used to find ESI relevant to this litigation; (2) whether neutral parties could be procured to run scans on the electronic devices of the defendants; (3) whether the searches for ESI could be staggered, such as not to disrupt the City's ability to function; (4) whether the searches could be narrowed such that they are focused only on certain parties and certain dates; and (5) what methods need to be in place to ensure that the privacy rights of third parties are not adversely affected during the discovery process. (202)
Perhaps a more pointed example of a court's dissatisfaction with the parties' delayed handling of e-discovery issues is found in Wells Fargo Bank, N.A. v. LaSalle Bank National Association, (203) in which the United States District Court for the Southern District of Ohio lamented:
The current dispute is a mild example of the sorts of problems which result when counsel do not deal systematically with ESI problems and possibilities at the outset of litigation, instead of filing one-paragraph boilerplate statements about ESI and waiting for the explosion later.... Whether it would have been appropriate for the Court to wade into the middle of this ESI dispute earlier in the case, the Court declines to do so now. [The Plaintiff] has shown no "extreme circumstances" to justify the Court's intervention this late in the process.... Plaintiff's Motion to Compel is denied. The cross-requests for expenses and attorney fees are also denied. The Court finds the parties could have avoided the expenses of this Motion by conferring appropriately early in the case about ESI. (204)
In addition to the meet-and-confer and reporting requirements in Rules 26(f) and 16(b), the parties to federal litigation (and in several states) are obligated to provide initial disclosures under Rule 26(a)(1), as noted above. Included in those mandatory disclosures are copies or descriptions by category and location "of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control[.]" (205) Thus, even prior to receiving formal requests for production under Rule 34, the parties will have production requirements that include electronically stored information.
Once a party has received requests for production that include electronically stored information, the official "collection and review" (206) process begins. While the attorney and client should have already preserved and segregated relevant information and the attorney should have begun reviewing it, the receipt of requests for production will bring an immediacy to the process. As the court in Pension Committee explained, different errors and omissions in the collection and review process can subject the client and its attorney to different forms of sanctions. (207) As that court illustrated:
[D]epending on the extent of the failure to collect evidence, or the sloppiness of the review, the resulting loss or destruction of evidence is surely negligent, and, depending on the circumstances may be grossly negligent or willful. For example, the failure to collect records-either paper or electronic-from key players constitutes gross negligence or willfulness as does the destruction of email or certain backup tapes after the duty to preserve has attached. By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, could constitute negligence. Similarly, the failure to take all appropriate measures to preserve ESI likely falls in the negligence category. These examples are not meant as a definitive list. Each case will turn on its own facts and the varieties of efforts and failures [are] infinite. I have drawn the examples above from this case and others. Recent cases have also addressed the failure to collect information from the files of former employees that remain in a party's possession, custody, or control after the duty to preserve has attached (gross negligence) or the failure to assess the accuracy and validity of selected search terms (negligence). (208)
Indeed, as discussed above, discovery failures in the e-discovery context may be as attributable to counsel as to a party, and counsel must be involved and supervise every step of the collection and review process. Furthermore, some courts have explained that the burden is not properly placed on the requesting party to ensure thoroughness but, rather, that the producing party is charged with knowledge of its own documents. (209) Likewise, the producing party cannot object to a request simply because "relevant, non-privileged, electronic data can be produced in paper form, when the requesting party has specified product in an electronic format." (210) However, the requesting party (absent extreme circumstances) does not have a fight to search through the producing party's electronic devices; instead, "the [F]ederal [R]ules 'allow the responding party to search his or her records to produce the required, relevant data.'" (211)
In facilitating the collection and review process (as well as during the initial preservation stage), the Sedona Principles recommend using a "team approach." (212) Members of the team might include counsel, IT personnel, records personnel, and, "potentially, other individuals with knowledge of the relevant electronic information systems and how data is used, such as information security personnel." (213) The Sedona Principles explain:
The team approach permits an organization to leverage available resources and expertise in ensuring that the organization addresses its preservation and production obligations thoroughly, efficiently and cost-effectively. Furthermore, maintaining a team allows the organization to build a knowledge base about its systems and how they are used. The organization may identify a person or persons who will act as the organization's spokesperson or witness on issues relating to the production of electronically stored information. Of course, the size of the team and the distribution of responsibilities among team members will vary depending upon the size of the organization and the scope of litigation. In short, coordination of information, resources and effort is essential. (214)
The Sedona Principles also discuss adding outside e-discovery consultants to the collection and review team, so long as consultants are consistent with counsel's assessment of privilege-related issues. (215) As discussed briefly above, many commentators consider e-discovery to be among the issues governed by an attorney's duties of diligence and competence under each state's rules of professional conduct. If an attorney is not technology proficient enough to maintain diligence and competence through the e-discovery process or, irrespective of the attorney's proficiency, if the case's e-discovery issues are unusually complex, part of satisfying an attorney's ethical obligations may include retention of an e-discovery consultant. (216) For instance, the requesting party in Infinite Energy, Inc. v. Thai Heng Chang (217) sought emails that would have been contained on a deactivated third-party email account (Yahoo email, in this case). (218) Counsel for the producing party stated that "he believed it would be impossible to retrieve deleted emails from a deactivated account but offered no evidence or support of the impossibility of retrieval beyond his own assumption." (219) At least one commentator has equated the unsupported assumption that a certain technology does not exist or that electronically stored information cannot be manipulated in such a way to be produced as a violation of the attorney's duty of diligence. (220)
Thus, in order to satisfy his or her ethical obligations, it may be necessary for an attorney to hire an e-discovery consultant. The Sedona Principles, too, discuss adding an e-discovery consultant to the preservation-and-collection team, assuming that counsel feels secure that such a consultant will be of use without sacrificing privilege-related issues. (221) However, besides the duties of diligence and competence that may be implicated in e-discovery, also at play are an attorney's duties to keep costs reasonable and to supervise non-attorney personnel. (222) Depending on the circumstances of the litigation at issue, e-discovery consultants can be expensive and can vary in qualifications and services provided. (223) Thus, counsel should weigh not only their ethical obligations as they relate to e-discovery consultants, but also such consultants' usefulness, cost effectiveness, and qualifications. (224) But, in the end, an attorney must remember that the burden of "ensuring the preservation, collection, processing, and production of electronically stored information rests with the party and its counsel," and not with the e-discovery consultant. (225)
Once the litigator understands the nature of the requests that the requesting party has made, he or she must define and implement the search for responsive documents, both paper and electronic. The goal is to find all responsive information without expending an exorbitant amount of time, money, and other client and attorney resources. Thus, it is important to understand how discovery can be reasonably limited. The Sedona Principles outline three steps in limiting discovery, including: "(1) collecting electronically stored information from repositories used by key individuals rather than generally searching through the entire organization's electronic information systems; (2) defining the information to be collected by applying reasonable selection criteria, including search terms, date restrictions, or folder designations; or (3) avoiding collection efforts that are disproportionate to, or are inappropriate in, the context of a particular litigation." (226)
But, ultimately, the producing party must produce all available responsive information or risk the consequences associated with non-production or spoliation. For instance, courts have not hesitated to determine that producing parties have failed to be diligent in searching for responsive electronic documentation. In Mirbeau of Geneva Lake LLC v. City of Lake Geneva, (227) the Eastern District of Wisconsin determined that the producing parties were not diligent in searching because they implemented no formal, organized attempt to search. (228) Instead, the producing parties had individual defendants "click through" their emails in an attempt to find responsive documents, and the court determined this practice did "not meet the level of diligence required for a fair discovery process." (229) Instead, the court decided, "Going forward, the [producing parties] will need to contemplate having someone organize the effort to fairly and effectively produce relevant ESI in its regularly accessed form for the [requesting party]. This may require hiring an outside party to provide such a service." (230)
Before conducting a search for responsive electronically stored information, the parties should think about search methodologies that will be appropriate in the particular case. (231) In its publications, the Sedona Conference has proposed that the legal field is "resistant" to becoming more search proficient and that such resistance is counterproductive. (232) In its Best Practices on search and retrieval, it posited:
Some litigators continue to primarily rely upon manual review of information as part of their review process. Principal rationales are: (1) concerns that computers cannot be programmed to replace the human intelligence required to make complex determinations on relevance and privilege; (2) the perception that there is a lack of scientific validity of search technologies necessary to defend against a court challenge; and (3) widespread lack of knowledge (and confusion) about the capabilities of automated search tools. (233)
However, counsel should be assured that it is unnecessary to search every file, byte, or sector of computerized data and that simpler search methodologies exist. (234) Rather, it is appropriate to limit the search to key witnesses and to use search terms and automated search processes. (235)
Depending on the complexity of the case, the extensiveness of the document requests, and the volume of information to be explored, electronically stored information can be searched manually or with automated capabilities. Manual searching may be done by the technology users, data custodians, other IT personnel, or the attorneys or the attorneys' support staff. Often, in smaller cases with lesser amounts of relevant electronically stored information, it will be performed by the technology users themselves. In other words, each key witness or other relevant individual will search his or her email, computer hard drive, network folders, portable media, and portable devices for documents that are responsive to the requests in question. No matter who is chosen to search, counsel should be cautious to provide detailed and sufficient instructions about collections and to oversee the collection carefully, because document collections performed by the actual technology, users can raise questions about the sufficiency or accuracy of the search. (236)
Computer-aided or "automated" searches will involve using a technology-based search process to collect data that is deemed relevant after the attorney and client have developed a search protocol. Such protocol might include a list of key search terms, a definitive time frame for file creation and modification, time frame for email and other messages, folder and other data locations, and any other specifics that identify where and what to search. (237) There are many options for how to perform an automated search. Many software programs and document-management systems have search-term and temporal limitation capabilities. Likewise, there are several software programs available to aid with e-discovery, specifically. Also, if an e-discovery consultant is retained, the design and implementation of any type of search, manual or automated, should be discussed at length with that consultant.
Courts looking at producing parties' search processes have allowed them some leeway in designing searches that are appropriate to the case at issue and the producing party's particular electronic systems. For example, in Ford Motor Co. v. Edgewood Properties, Inc., (238) the requesting party objected to the producing party's collection and search process. (239) In reviewing the appropriateness of both manual and automated searches, the United States District Court for the District of New Jersey stated:
In The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, Practice Point 1 states that "in many settings involving electronically stored information, reliance solely on a manual search process for the purpose of finding responsive documents may be infeasible or unwarranted. In such cases, the use of automated search methods should be viewed as reasonable, valuable, and even necessary." (240)
The court continued by reasoning that the producing party is in the best position to govern the search process and, thus, has the presumption of crafting the best search method, absent an agreement between the parties. (241) The court cautioned, however, that the leniency given to producing parties is to use sound discretion and not "carte blanche." (242)
Additionally, several courts have emphasized the importance in crafting an appropriate and useful list of search terms. For instance, in William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., (243) the Southern District of New York quoted the District of Maryland, reasoning:
While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.... Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented. (244)
The Gross Construction court continued, this time quoting the United States District Court for the District of Columbia:
Whether search terms or "keywords" will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. (245)
Similarly, in cases in which e-discovery disputes arise, courts have gone so far as to assess the appropriate search methodology, including the producing party's specific search terms and particular locations to be searched. (246)
No matter how simple or complex the litigation or the data to be searched is, who performs the search and collection, or what search methodology is employed, counsel must be sure (as with all steps in the e-discovery process) to document every step of the process extensively. Counsel should decide on a collection methodology early in the litigation and be able to explain why that methodology was employed, what steps were taken, and how the search and collection were carried out. (247)
IV. CHOOSING A LURE: THE REQUESTING PARTY'S PURSUIT OF INFORMATION FROM PARTIES TO LITIGATION AND THIRD PARTIES
On the other side of the coin is the party seeking discovery from another party to the litigation. However, even before reaching the point of propounding requests for production, attorneys on both sides of the case must ensure that all parties involved have reason to know of the litigation and understand that the duty to preserve evidence has been triggered. As discussed in Part II, an easy and almost fail-safe way to trigger another party's duty to preserve evidence is to send a properly drafted evidence-preservation letter. The evidence-preservation letter can be sent prior to commencing litigation (usually if the attorney represents the prospective plaintiff) or after litigation has been commenced, and it is a tool that can be used by either party. The evidence-preservation letter should be sent to the opposing party, or in some cases a co-party, or to its counsel and should indicate that the client will seek electronically stored information in discovery, what information it will seek, in what format you plan to seek the information, and what sources (both physical and by person) are suspected to possess discoverable information. (248) The letter should walk a fine line between being broad, so as to provide the opposing party with sufficient notice to trigger a broad duty to preserve, and being narrow enough that the party cannot claim that it was overly broad.
Although rare, there will be cases in which an evidence-preservation letter is inadvisable because, for example, it may actually trigger the party to destroy evidence or have other unintended consequences. In that case, the attorney may seek a preservation order or "protective order" under Rule 26(c). (249) However, preservation orders should only be necessary in rare cases and, if objected to, may require an evidentiary hearing to prove the appropriateness of the order. (250)
A. PROPOUNDING APPROPRIATE REQUESTS FOR PRODUCTION OF ELECTRONICALLY STORED INFORMATION
As with any request for production, requests for electronically stored information--first and foremost--should target particular pieces of electronically stored information rather than overly broad, boilerplate requests that could be categorized as an impermissible fishing expedition. (251) Under Rule 34(b), a requesting party must describe the items it requests with reasonable particularity. (252) "What is reasonably particular is dependent upon the facts and circumstances in each case[,]" and "[t]he test for reasonable particularity is whether the request places the party upon 'reasonable notice of what is called for and what is not.'" (253) As an illustration, although such requests are a very common practice in both traditional and e-discovery, courts often determine that requests seeking "all documents related to a claim or defense" lack sufficient particularity. (254) After all, one of Rule 34's purposes is to limit parties' ability to conduct "fishing expeditions[.]" (255)
For example, in Lopez v. Chertoff (256) the United States District Court for the Eastern District of California sustained objections to requests for all electronically stored information "referring to" or "relating to" the plaintiff. (257) Similarly, in Aponte-Navedo v. Nalco Chemical Co., (258) the requesting parties sought production of information pertaining to the producing parties' "databases and data structures," "information technology infrastructure," "network infrastructure," "software programs," "email and corporate level messaging systems," and "security and authentication policies for all networks and applications[.]" (259) The producing party objected, claiming that "rather than identifying the appropriate scope of the information sought, [the requesting parties were] demanding voluminous categories of information regarding databases, systems and networks without regard as to whether they contain[ed] any discoverable information" and were properly denied "because they have made no showing as to what they expect to discover." (260) The United States District Court for the District of Puerto Rico agreed, reasoning that although there was "no question" that "information regarding [the producing party's] databases, information technology infrastructure, network infrastructure, software programs, messaging systems and policies" could be obtained, "[t]his does not mean that in doing so, [the requesting parties] are authorized to conduct a 'fishing expedition."' (261) Instead, the court determined that the requests were too broad as drafted. (262)
In Rodriguez-Torres v. Government Development Bank of Puerto Rico, (263) another case from the District of Puerto Rico, the requesting parties sought all emails and calendar entries relating or referring to them, and they provided a list of key words that the producing party was instructed to pay "particular attention to." (264) The court determined that the information sought was not reasonably accessible under Rule 26(b)(2)(B) (265) and, as such, the requesting parties needed to show good cause as to why the information should be produced. (266) The requesting parties contended that they would find information demonstrating "discriminatory animus such as derogatory and demeaning references, exclusion from meetings, communications and work activities, and general disregard for [a particular party's] abilities." (267) The court recognized that the requesting parties' only basis for believing that emails would contain evidence of discriminatory animus was a series of three articles proposing that "e-mail encourages senders to write unguarded, unwise and often inappropriate comments." (268) The court concluded:
Just because e-mails are more likely to lead to inappropriate comments is not a sufficient basis to believe that the ESI requested here will lead to the discovery of the information [the requesting parties] claim they will discover. The Court asked [the requesting parties] to provide it with the basis of their belief specifically because the Court wanted to prevent [the requesting parties] from requesting the ESI for the sole purpose of conducting a fishing expedition. After considering [their] argument, the Court determines that [the requesting parties'] request is merely a fishing expedition to find out if there is any evidence that supports their claim. Discovery is not meant to serve as a fishing expedition. (269)
One of the request-related issues that has drawn much judicial attention is the appropriate form of production, both as to what requesting parties may seek and what they are entitled to. Rule 34(b) provides that a party propounding requests for production "may specify the form or forms in which electronically stored information is to be produced." (270) However, the Rule also provides that when "a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms" and that "[a] party need not produce the same electronically stored information in more than one form." (271) Thus, a requesting party must give careful consideration to the form it will request that electronically stored information be produced in, or the right to determine form of production defaults to the producing party.
Except in rare cases, the decision regarding form of production for electronically stored information revolves around whether the requesting party wants the information in "native format," in an imaged format such as PDF (272) or TIFF, (273) or in traditional paper format. The Sedona Conference's Glossary describes native format and imaged format as:
Electronic documents have an associated file structure defined by the original creating application. This file structure is referred to as the "native format" of the document. Because viewing or searching documents in the native format may require the original application (for example, viewing a Microsoft Word document may require the Microsoft Word application), documents may be converted to a neutral format as part of the record acquisition or archive process. "Static" formats (often called "imaged formats"), such as TIFF or PDF, are designed to retain an image of the document as it would look viewed in the original creating application but do not allow metadata to be viewed or the document information to be manipulated. In the conversion to static format, the metadata can be processed, preserved and electronically associated with the static format file. However, with technology advancements, tools and applications are becoming increasingly available to allow viewing and searching of documents in their native format, while still preserving all metadata. (274)
In other words, the "native format" of a document is the form in which it is "ordinarily maintained," to use Rule 34's language. In many cases, the native format will be sufficient because the software necessary to view the information and its associated metadata is easily obtained, including word-processing programs such as Word and WordPerfect, spreadsheet programs like Excel, and the like. In other cases, native format is not the ideal choice for the requesting party's purposes because it would require particular software that is expensive or necessary only for the particular case. Examples might include accounting programs, architectural or drafting programs, and charting and other software in the medical field. In those cases, an imaged copy of the information (like a PDF or TIFF) might be sufficient and constitute "a reasonably usable form." (275) Production of information as PDF or TIFF is also widely accepted. The Sedona Conference noted:
In current practice, many parties, local rules and courts have endorsed the use of image production formats, principally the Tagged Image File Format ("TIFF") and Adobe Portable Document Format ("PDF") formats. Standing by themselves, image file productions are the equivalent of printed pages from the screen. They have the advantage of a static format that can be Bates numbered and redacted, and, compared to native files, it is harder (but not impossible) to alter the data inadvertently or deliberately. However, simple image productions require significant processing that is time consuming and costly. The image productions, by themselves, also lose searchable text and metadata that might enable better understanding and utility of the evidence. (276)
Which production format an attorney seeks in discovery is dependent, primarily, on whether the attorney wants to be able to access the "metadata" (277) associated with the file. The Sedona Conference advised:
Accordingly, there should be two primary considerations in choosing the form of production: (1) the need for, or probative value of both apparent and metadata; and (2) the extent to which the production of metadata will enhance the functional utility of the electronic information produced and allow the parties to conduct a more cost-effective and efficient review. These considerations should be weighed against the negative aspects associated with each format. (278)
Seeking metadata or "native format" can have advantages and disadvantages. Native format is a requesting party's preferred format, if that party wants to access the information in all the same ways the producing party can access it. (279) But, native format can be difficult or impossible to redact or Bates number and, if the requesting party seeks information that will be produced in many different native formats, reviewing that information can be expensive and burdensome. (280)
In requesting native format or another format that provides some form of metadata, the requesting party needs to consider both the benefits and the drawbacks of such a request. For instance, while there may be an inclination to request metadata to "catch" the opposing party in falsehoods about electronic data, the reality is that finding deliberate misuses of electronic data is rare. Instead, metadata may often benefit the producing party. As the Sedona Conference explained:
The routine preservation of metadata pending agreements or decisions on the ultimate form of production may be beneficial in a number of ways. Preservation of metadata may provide better protection against inadvertent or deliberate modification of evidence by others and the systematic removal or deletion of certain metadata may involve significant additional costs that are not justified by any tangible benefit. Moreover, the failure to preserve and produce metadata may deprive the producing party of the opportunity later to contest the authenticity of the document if the metadata would be material to that determination. (281)
For these reasons, the Sedona Conference recommended:
In determining the appropriate forms of production in a case, requesting parties and counsel should consider: (a) the forms most likely to provide the information needed to establish the relevant facts of the case; (b) the need for metadata to organize and search the information produced; (c) whether the information sought is reasonably accessible in the forms requested; and (d) the requesting party's own ability to effectively manage and use the information in the forms requested. (282)
Likewise, the Sedona Conference recommended that producing parties consider the following with regard to form of production:
Producing parties and counsel should consider: (a) the relative risks of inadvertent production of confidential, privileged, and work product information associated with different forms of production; (b) difficulties in redaction, tracking, and use of native files; (c) whether alternative (e.g., "nonnative") forms of production provide sufficient usability (e.g., by providing adequate accompanying information through load files) such that the producing and requesting parties have the same access to functionality; and (d) the relative costs and burdens with respect to the proposed forms of production, including the costs of preproduction review, processing, and production. (283)
Moreover, both parties should use care when considering the value of metadata in any particular case because it can be inaccurate. (284) For this reason, some courts have been willing to give metadata great evidentiary weight while others have been wary to recognize the usefulness of metadata. (285) In sum, both requesting and producing parties should be cautious when considering form of production and, in ideal cases, counsel for all parties should confer on the matter and reach mutually acceptable resolutions. (286)
Many courts have handled disputes over form of production, including metadata issues in various contexts. For instance, in Covad Communications Co. v. Revonet, Inc., (287) the District Court for the District of Columbia determined that it was "madness" for a producing party to produce Excel spreadsheets in paper format and instead required that "documents that were originally created in an electronic format (which must be the vast majority, if not all, of them) must be produced in an electronic format that is 'the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.'" (288) In considering the Advisory Committee's Note to the 2006 e-discovery amendments, the court continued:
But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently m the litigation. (289)
Instead, the court highlighted the importance of searchability, stating that it was "improper to take an electronically searchable document and either destroy or degrade the document's ability to be searched." (290)
Similarly, in In re Netbank, Inc. Securities Litigation, (291) the requesting party sought information in native format, but the producing party refused and instead provided TIFFs. (292) The requesting party responded that TIFFs were problematic because of the "inability to (1) determine the identity of the author and editors of the documents; (2) determine the creation and modification dates of the documents; (3) determine whether the documents have attachments; and (4) identify, sort, search or filter documents." (293) The court recognized the producing parties' position:
The [producing parties] argue that they are not required to produce ESI in any particular format, so long as it is reasonably usable. They state that producing documents in native format "allows the alteration of documents produced and creates difficulties in authenticating and tracking documents produced." The [producing parties] further state that using native format makes it impossible to 'Bates label individual pages of a document,' and state that 'another potential drawback with native format production is that one or more of the parties may lack access to the software program or application required to read the native file.' Finally, the [producing parties] state that they have agreed to produce spreadsheets in native format, have provided [the requesting party] with the data needed to perform optical character recognition ("OCR") process on 16,483 of 17,958 documents [to make the TIFF documents searchable], and are willing to consider on a case-by-case basis. "additional requests to produce particular documents in native format." (294)
The court, after considering the pros and cons of native format raised by both sides, granted the motion to compel production in native format, citing that the producing parties' ostensibly valid reasons for producing TIFFs were merely hypothetical problems while the requesting party's objection to TIFF format was an actual obstacle. (295)
With respect to metadata specifically, in Dahl v. Bain Capital Partners, LLC, (296) the requesting party sought all available fields of metadata on email, but the producing parties offered to produce only 12 fields. (297) The court sided with the producing parties, ruling:
The court rules in favor of the [producing parties] for two reasons. First, case law shows wariness about metadata's value in litigation. Many courts have expressed reservations about the utility of metadata, explaining that it does not lead to admissible evidence and that it can waste parties' time and money. Second, Rule 34 militates against the broad, open disclosure of metadata that the Shareholders seek. The Rule 34 Advisory Committee Notes to the 2006 Amendment express concern that producing diverse types of electronically stored information in the same format would be costly, burdensome, and ultimately fruitless. Instead, the notes explain that requests should be tailored to each type of program, so only necessary data is produced. (298)
For these reasons, the court concluded:
Rather than a sweeping request for metadata, the [requesting parties] should tailor their requests to specific word documents, specific emails or specific sets of email, an arrangement that, according to their memorandum, suits the [producing parties]. This more focused approach will, the court hopes, reduce the parties' costs and work. Furthermore, it reflects the general uneasiness that courts hold over metadata's contribution in assuring prudent and efficient litigation. (299)
B. PAYMENT ISSUES RELATED TO THE COSTS ASSOCIATED WITH E-DISCOVERY
As noted briefly above, the general rule in both traditional and e-discovery is that the producing party is responsible for the costs associated with producing its own documentation. However, a producing party is permitted to request that the costs of production shift to the requesting party in certain circumstances. For instance, courts have required requesting parties to pay for production in a format other than that in which information is ordinarily maintained or reasonably useable. In Dahl, the issue was payment for the addition of optical character recognition for paper and electronically stored information, which would allow unsearchable information to be searched electronically. (300) Similarly, courts are willing to shift costs to the requesting party when the producing party is required to produce information that is not reasonably accessible because of undue burden, pursuant to Rule 26(b)(2)(B). (301) Factors that might be considered in any cost-shifting case would include whether the request is narrowly tailored to discover relevant information; whether the information is available from other sources, such as testimony, interrogatories under Rule 33, requests for admission under Rule 36, or other discovery devices; the ratio between the cost of production and the amount in controversy; each party's resources in comparison to the total cost of production; the nature of the issue being litigated; and, each party's ability to control costs and incentives for such control. (302)
For instance, in Laethem Equipment Co. v. Deere & Co., (303) the United States District Court for the Eastern District of Michigan determined that cost shifting was appropriate because both parties would be forced to tailor their e-discovery requests if they were responsible for paying their respective opponent's production costs. (304) Rather, the court explained:
[T]he Court is convinced that both sides have broadened their demands for ESI to include not only information that they believe is valuable, but also marginal information whose primary utility would be found in the burden and cost of production to the other side. The most practical way to curb that bilateral tendency toward excess is to require the party seeking discovery to pay for the cost of finding and producing it. (305)
C. E-DISCOVERY FROM THIRD PARTIES
Rule 45 was also amended in 2006 to include production of electronically stored information from third parties. (306) As amended, Rule 45 provides that the drafter of a subpoena must "command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises[.]" (307) It also provides:
A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced. (308)
If an attorney is seeking electronically stored information from a third party via Rule 45, much of the discussion in Part IV will apply. For instance, the requests need to be particularized and not overly burdensome. Similarly, if an attorney represents a client served with a Rule 45 subpoena, most of the information in Parts II and III will apply. The client owes a duty to preserve information responsive to the subpoena and needs to engage in a careful and documented collection process.
In terms of Rule 45 e-discovery practice, specifically, the Federal Rules do not provide for a specific discovery plan, and the parties to litigation and the person or entity subjected to the subpoena are supposed to confer informally about the scope and means of production. (309) An attorney issuing a subpoena that involves e-discovery should be conscientious that overly broad or burdensome requests can result in sanctions under Rule 45, as well as potential liability under federal electronic-communications privacy laws. (310)
V. THE BOAT CAPSIZES: THE REFUSAL OR INABILITY TO PRODUCE OTHERWISE-DISCOVERABLE INFORMATION AND THE ASSOCIATED CONSEQUENCES
Of course, there may be situations in which a party will refuse to or will be unable to produce otherwise discoverable information. Some of those situations may include instances of privilege; redaction or withholding of private, trade secret, or confidential information; information that is not reasonably accessible; or, in some cases, unavailability due to earlier destruction. In the latter case, courts may consider destruction or omission of discoverable electronic information to be "spoliation" that can be subject to a number of sanctions, including dismissal or judgment; adverse jury instructions pertaining to the absent evidence; attorney's fees, costs, or monetary sanctions; and practical remedies such as further discovery, inspection of electronic media, and forensic imaging.
A. LEGALLY COGNIZABLE BASES FOR REFUSING PRODUCTION OF ELECTRONICALLY STORED INFORMATION
Assuming a party has a valid privilege to assert in withholding discoverable information, it is important for counsel to include such information on its privilege log, just as with paper documentation. Traditionally, an attorney withholding information from production based on assertion of a privilege would provide a description of the document or item withheld as well as a description of the privilege asserted. (311) In paper discovery, the document description often includes objective information such as author, addressee, and Bates number. (312) However, privilege logs can become overcomplicated with the sheer volume of electronic information each client may have and the difficulties associated with tracking and describing it. (313) As the Sedona Conference recognized:
Even if there are few documents, preparing a privilege log is often extremely time-consuming. Even with the best efforts of counsel, it often results in a privilege log that is of marginal utility at best. The immense volume of electronic documents now subject to discovery exacerbates the problem. (314)
Because of this complication, the Sedona Principles recommend that parties agree early in litigation to more general privilege logs that classify only categories or groups of documents withheld, saving the ultimate adjudication of whether a particular document is privileged for a more limited document-by-document review. (315) The Principles reason that such an agreement between counsel will help reduce motion practice and other procedural challenges in cases with larger volumes of electronic information. (316)
Another issue related to withholding information that might otherwise be discoverable involves documentation containing private, trade secret, or confidential information. The Sedona Principles note that "ample protection" exists for this type of information via Rule 26(c)'s provisions for protective orders. (317) The Principles also provide several practical solutions for production in situations implicating confidential-type information. For instance, the court may appoint a neutral third party, such as a special master or court-appointed expert, to manage complex e-discovery issues generally. (318) Part of that management function could include inspection of documents that may contain privileged, private, trade secret, or confidential information. (319) Similarly, parties to litigation can make "quick-peek agreements" prior to production to protect the producing party's interest in privileged or otherwise-confidential information. (320)
Courts have demonstrated a willingness to recognize privacy concerns related to production of electronic information. For instance, in John B. v. Goetz, (321) the district court granted an order compelling forensic imaging of the producing party's computers. (322) The United States Court of Appeals for the Sixth Circuit reversed that order, reasoning that the district court "fail[ed] to account properly for the significant privacy and confidentiality concerns" present in the case. (323) Similarly, in Executive Air Taxi Corp. v. City of Bismarck, (324) the district court refused to allow a forensic investigation of the producing party's computers. (325) The Eighth Circuit determined that the district court was within its discretion to refuse such an investigation because "forensic discovery could expose confidential or privileged materials." (326)
Another valid basis for refusing production arises when information is considered "not reasonably accessible because of undue burden or cost" under Rule 26(b)(2)(B). (327) As noted above, the producing party must sufficiently allege that the information sought is not reasonably accessible and, if the information is determined to be "not reasonably accessible," the requesting party must demonstrate good cause for why production is still required. (328) Generally speaking, the cost of e-discovery should be viewed proportionately with the case's amount in controversy, and this concept is particularly relevant in cases when production is unduly burdensome or costly. (329) Examples of "not reasonably accessible" data include, according to the Federal Rules Advisory Committee:
backup tapes that are intended for disaster recovery purposes and are not indexed, organized, or susceptible to electronic searching; legacy data that remains from obsolete systems and is unintelligible on the successor systems; and data that was 'deleted' but remains in fragmented form, requiring a modern version of forensics to restore and retrieve. (330)
Courts reviewing issues of accessibility have reached mixed results, depending on the facts of each case. In Rodriguez-Torres, the District of Puerto Rico denied the requesting parties' motion to compel, determining that the data sought was not reasonably accessible because of undue cost. (331) In evaluating whether the requesting parties could overcome the accessibility issue with a showing of good cause, the court determined that production was unwarranted because the requesting parties had not shown the purpose for their requests and were instead conducting "merely a fishing expedition to find out if there is any evidence that supports their claim." (332)
On the other hand, in Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, (333) the District of Columbia District Court ordered production of backup tapes, which are ordinarily not reasonably accessible, despite cost and burden. (334) Reflecting on the Advisory Committee Note, the court explained in assessing whether good cause existed to require production of information that is not reasonably accessible:
The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case. Appropriate considerations may include: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties' resources. (335)
Utilizing these factors, the court in Disability Rights cited an "overwhelming case" for compelling production because the, producing party had "indefensibl[y]" destroyed information outside of the Rules s safe harbor. (336)
B. SPOLIATION OF EVIDENCE AND SANCTIONS
When evidence is alleged to exist and cannot be found or has been destroyed, another entire set of considerations comes into play because the court will consider whether the evidence has been spoliated and whether sanctions are warranted. Courts have recognized, "Spoliation is the 'destruction or material alteration of evidence or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.'" (337) Courts' imposition of sanctions for spoliation is based on an "inherent power to control the judicial process and litigation" that "is limited to that necessary to redress conduct 'which abuses the judicial process.'" (338) However, a district court's discretion in imposing an appropriate sanction is "broad." (339)
Recently, courts have taken the issue of spoliation in e-discovery cases more seriously, crafting new remedies and outlining new policies. As the United States District Court for the Southern District of Texas recently reasoned:
Spoliation of evidence--particularly of electronically stored information--has assumed a level of importance in litigation that raises grave concerns. Spoliation allegations and sanctions motions distract from the merits of a case, add costs to discovery, and delay resolution. The frequency of spoliation allegations may lead to decisions about preservation based more on fear of potential future sanctions than on reasonable need for information. Much of the recent case law on sanctions for spoliation has focused on failures by litigants and their lawyers to take adequate steps to preserve and collect information in discovery. (340)
Whether conduct is considered spoliation and whether different sanctions are viewed as appropriate depends on the applicable jurisdiction. However, the tests are predominantly similar. For example, in the Pension Committee case, the Southern District of New York determined that the relevant inquiry was the spoliating party's level of culpability, the relevance of the evidence in question, and the prejudice against the requesting party. (341) In Beard Research, the Delaware Court of Chancery determined that sanctions serve a remedial function, a punitive function, and a deterrent function, and that the relevant inquiry in spoliation is for the least severe sanction based upon the spoliating party's culpability and the prejudice to the requesting party. (342) Similarly, in Sampson, the District of Maryland focused on the spoliating party's duty to preserve evidence and level of culpability as well as the relevance of the evidence in question. (343)
For jurisdictions that require a showing of relevance, courts require something more than mere relevance under Rule 401 of the Federal Rules of Evidence. (344) For instance, the District of Maryland, looking at Fourth Circuit precedent, has required that the evidence be of the type that would "naturally have been introduced into evidence" and "would have supported the claims or defenses of the party that sought it" based on a "reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the lost material would have produced evidence favorable to his cause." (345) On the other hand, the District of South Carolina has determined that the requesting party does not have to show "that the evidence would have been favorable to his case; it is enough to show that the evidence 'naturally would have elucidated a fact at issue.'" (346) In any event, in showing relevance of allegedly spoliated evidence, the requesting party must be able to show more than "mere speculation" that the evidence in question existed. (347)
The spoliating party's culpability, whether negligent, grossly negligent, willful, or something else, is significant because it allows the imposition of more severe sanctions in certain jurisdictions. For example, in the Pension Committee case, the Southern District of New York determined that a showing that the spoliating party was grossly negligent or acted in bad faith will allow the district court discretion to presume both relevance of the evidence and prejudice against the requesting party. (348) Other courts have simply stated that the sanction in each particular case should be tailored to the degree of culpability. (349) There exists a spectrum of sanctions judges may impose in spoliation cases, ranging among dismissal or default judgment, adverse jury instructions, monetary sanctions, attorney's fees and costs, further discoveR, and practical remedies such as forensic imaging or inspection of computers. (350)
The level of culpability required of a spoliating party, and thus the appropriate sanction, is also an issue highly dependent on the parties' jurisdiction, as a clear circuit split has developed on the matter. Circuit courts, or district courts within certain circuits that have not spoken on the matter, have required levels of culpability ranging everywhere from negligence or mere "carelessness" in failing to preserve evidence to bad-faith destruction or intentional destruction "with a desire to suppress the truth." (351) And, while the United States Supreme Court has not spoken on the issue, at least one federal court has opined that prior Supreme Court precedent requires a level of culpability greater than negligence, at least to warrant an adverse jury instruction. (352)
As the Eighth Circuit has recognized, an adverse, jury instruction is a significant sanction. In Morris v. Union Pacific Railroad, (353) the court stated:
An adverse inference instruction is a powerful tool in a jury trial. When giving such an instruction, a federal judge brands one party as a bad actor, guilty of destroying evidence that it should have retained for use by the jury. It necessarily opens the door to a certain degree of speculation by the jury, which is admonished that it may infer the presence of damaging information in the unknown contents of [, for example,] an erased audiotape. As the district court in this case put it colloquially, "it's like cow crap; the more you step in it, the more it stinks." One distinguished court years ago cautioned against use of an adverse inference instruction like the one given in this case (there, involving an absent witness rather than missing evidence), because "the jury should not be encouraged to base its verdict on what it speculates the absent witness would have testified to, in the absence of some direct evidence." (354)
Federal courts have been increasingly willing to issue adverse jury instructions in e-discovery spoliation cases in the recent past, despite the significance of such a sanction. For instance, in the Pension Committee case, the court issued a lengthy jury instruction informing the jury, among other things, that the producing party was grossly negligent in allowing evidence to be destroyed and that the jury was allowed to presume that the destroyed evidence would have been favorable to the requesting party, if the jury chose to presume so. (355) Similarly, in the Nucor case, the court instructed the jury as to the elements of spoliation and that, if the jury found those elements had been proven, it could properly presume that the destroyed evidence would have been unfavorable to the spoliating party. (356)
Thus, while there are legitimate bases for withholding production of discoverable information, a party finding itself on the losing end of a spoliation argument can suffer significant consequences. Although courts apply varying standards in assessing spoliation and selecting the appropriate sanction, courts have also shown a willingness to impose significant sanctions, including monetary awards, damaging adverse jury instructions, and (in extreme cases) dismissal or default judgment. For these reasons, counsel must be cognizant of the client's duty to preserve evidence, implement an adequate and effective litigation hold, be diligent in collecting and reviewing data, and protect data from spoliation.
VI. REPACKING THE TACKLEBOX: HELPING CLIENTS OUTSIDE A LITIGATION HOLD TO IMPLEMENT PROACTIVE POLICIES
In the ideal situation, an attorney that foresees litigation for a long-term client will already have a handle on the client's documents and electronic information systems because the client will already have a document-retention and document-management policy. As the Sedona Principles point out, businesses should prepare for e-discovery even before litigation arises by having proactive policies and systems in place. (357) The Principles explain:
Organizations should adopt policies and programs that provide rational and defensible guidelines for managing electronically stored information. These guidelines should be created after considering the business, regulatory, tax, information management, and infrastructure needs of the organization, including the need to conserve electronic storage space on email and other servers. Thus, a company that determines it only needs to retain email with business record significance should set forth such a practice in its document retention policy. Employees would then be responsible for implementing the policy, neither destroying documents and electronically stored information prematurely, nor retaining them beyond their useful life. Any such program should include provisions for legal holds to preserve documents and electronically stored information related to ongoing or reasonably anticipated litigation, governmental investigations, or audits. The existence, reasonableness and effectiveness in practice of such a program should be a significant consideration in any spoliation analysis. (358)
Document retention can be based on many criteria, including both practical considerations relevant to the particular client and legal considerations in areas where document retention has been formally regulated. For example, publicly traded companies must pay heed to Sarbanes Oxley's document-retention requirements. (359) Furthermore, for clients that can be considered employers under the many federal employment laws, there exists a host of recordkeeping regulations, including for payroll records, garnishment information, Occupational Safety and Health Act records, Equal Employment Opportunity Reports, pension and benefits
information, work authorization records, income tax records, and other related documents. Counsel should work with clients in assessing an appropriate document-retention policy that addresses each client's practical and legal needs.
Practicing law in the age of e-discovery can be complicated both because of its nature as a complex process and because it requires counsel to look at electronically stored information from so many perspectives. Competent, diligent counsel should ensure that clients have document-retention and document-management systems in place even before litigation takes place. Likewise, counsel is responsible for understanding when the client's duty to preserve is triggered and how to go about properly implementing a litigation hold and subsequent document collection. On the other side of the coin, diligent counsel can take steps to ensure the opposing party's duty to preserve evidence has been triggered and that the client's requests for production are appropriate to seek all the information the client needs to establish its own claims and defenses. And, if the process goes awry and evidence is spoliated, counsel needs to be aware of the corresponding consequences and how to go about minimizing them.
Instead of thinking of e-discovery as an intimidating or burdensome process, attorneys today should view the opportunity to request and produce electronic information as a useful tool in the litigation toolbox. With some understanding of proper e-discovery practices, the underlying theories, and existing e-discovery precedent, counsel should be able to avoid making e-discovery an impermissible "fishing expedition" and instead take advantage of the right fishing hole, line, lure, and other tackle.
(1.) See, e.g., Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146, 148 (D. Mass. 2009).
(2.) See, e.g., Aponte-Navedo v. Nalco Chem. Co., 268 F.R.D. 31, 8 (D.P.R. 2010) (citing Martinez v. Cornell Corrs. of Tex., 229 F.R.D. 215, 218 (D.N.M. 2005)); Rodriguez-Torres v. Gov't Dev. Bank of P.R., 265 F.R.D. 40, 44 (D.P.R. 2010); Lopez v. Chertoff, No. CV 07-1566-LEW, 2009 WL 1575214, at *3 (E.D. Cal. June 02, 2009).
(3.) Myers v. Prudential Ins. Co. of Am., 581 F. Supp. 2d 904, 913 (E.D. Tenn. 2008).
(4.) See FED. R. CIV. P. 16, 26, 34, 37.
(5.) Leslie Meredith, Was that you at Starbucks e-mail? Don't bite. New personalized phishing scam aims to get credit card information, MSNBC, May 17, 2010, available at http://www. msnbc.com/id/37195408/ns/technology_and_science-security/.
(6.) Press Release, The Radicati Group Releases "Business User Survey, 2009" Study (Nov. 23, 2009), available at http://www.radicati.com/?p=4579.
(7.) Philip M. Berkowitz, International Dispute Resolution in Practice: Experiences, Trends, Tips, Program on International Law Practicum Presented at International Section of the New York State Bar Association (Jan. 27, 2010). See JAY E. GRENIG & WILLIAM C. GLEISNER, III, 1 E-DISCOVERY & DIGITAL EVIDENCE [section] 1:2 (October 2009) (citing Stephen C. Bennett & Cecilia R. Dickson, E-Discovery May be a Job for Special Masters." They Might Show a Way Around the Complexities Inherent in the Process, NAT'L L. J., July 17, 2006, at S5).
(8.) The Sedona Conference, Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 SEDONA CONF. J. 189, 192 (2007), available at http://www. thesedonaconference.org.
(9.) A gigabyte is 1,073,741,824 bytes. The Sedona Conference, The Sedona Glossary (Second Edition). for E-Discovery and Digital Information Management (2007), at 24, available at http:// www.thesedonaconference.org. Additionally, the Sedona Conference Glossary defines "byte" as, "the basic measurement of most computer data and [it] consists of 8 bits." Id. at 7. "Computer storage capacity is generally measured in bytes." Id. "Although characters are stored in bytes, a few bytes are of little use for storing a large amount of data." Id. "Therefore, storage is measured in larger increments of bytes." Id.
(10.) Search & Retrieval, supra note 8, at 192.
(13.) The Sedona Conference describes itself as, a charitable, 501(c)(3) research and educational institute dedicated to the advancement of law and policy in the areas of antitrust law, complex litigation and intellectual property rights. It is supported by registrations, meeting fees, sponsorships and other donations. TSC is a Minnesota nonprofit corporation with its principal place of business in Phoenix, AZ, and a satellite office in Sedona, AZ.
http://www.thesedonaconference.org/content/faq. 14. Search & Retrieval, supra note 8, at 192.
(15.) The Sedona Conference, Commentary on Achieving Quality in the E-Discovery Process (2009), at 1, available at http://www.thesedonaconference.org.
(16.) See, e.g., Spieker v. Quest Cherokee, LLC, No. 07-1225-EFM, 2009 WL 2168892, at *3 (D. Kan. July 21, 2009) (stating, inter alia, "This court is aware of no case where a party has been excused from producing discovery because its employees 'have not previously been asked to search for and/or produce discovery materials'").
(17.) For instance, United States District Court Judge Shira Scheindlin on the United States District Court for the Southern District of New York, who also authored the groundbreaking series of opinions in Zubulake v. UBS Warburg, LLC, recently chided the parties in a case being litigated in her court by stating:
As discussed six years ago in the Zubulake opinions, when [litigants and counsel do not take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party], the integrity of the judicial process is harmed and the courts are required to fashion a remedy. Once again, I have been compelled to closely review the discovery efforts of parties in a litigation, and once again have found that those efforts were flawed. As famously noted, "[t]hose who cannot remember the past are condemned to repeat it." By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records-paper or electronic-and to search in the right places for those records, will inevitably result in the spoliation of evidence.
Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 461, 462-63 (S.D.N.Y. 2010) (quoting GEORGE SANTAYANA, REASON IN COMMON SENSE, VOL. 1 OF THE LIFE OF REASON 82 (Prometheus Books 1998) (1905)).
Likewise, the United States District Court for the Southern District of Ohio recently chastised counsel and litigants for not handling e-discovery disputes early in litigation, as insisted upon by the Federal Rules amendments:
The current dispute is a mild example of the sorts of problems which result when counsel do not deal systematically with ESI problems and possibilities at the outset of litigation, instead of filing one-paragraph boilerplate statements about ESI and waiting for the explosion later. Whether it would have been appropriate for the Court to wade into the middle of this ESI dispute earlier in the case, the Court declines to do so now. Wells Fargo has shown no "extreme circumstances" to justify the Court's intervention this late in the process.
Wells Fargo Bank, N.A. v. LaSalle Bank Nat'l Ass'n, No. 3:07-cv-449, 2009 WL 2243854, at *2-3 (S.D. Ohio July 24, 2009).
Perhaps one of the most eye-opening opinions was authored by a Southern District of New York judge in the 2009 opinion, William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co. The following are examples of the court's repeated reprimanding of counsel and litigants about their handling of e-discovery issues. The court began its opinion by announcing its purpose as a "wake-up call":
This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or "keywords" to be used to produce emails or other electronically stored information ("ESI"). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.
William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009). The court concluded with a notice to litigators who might be uncomfortable working with e-discovery that it is "time that the Bar-even those lawyers who did not come of age in the computer era-understand" e-discovery issues. Id. at 136.
(18.) See infra Part I.
(19.) See infra Part II.
(20.) See infra Part III.
(21.) See infra Part IV.
(22.) See infra Part V.
(23.) See infra Part V.
(24.) See infra Part VI.
(25.) See FED. R. CIV. P. 16, 26, 34, 37.
(26.) See, e.g., John Cord, Minding Your Ps and Qs ... and Your @S and *S, 45 TRIAL 36, 39 (Jan. 2009) (stating, "Attorneys accustomed to paper discovery are often intimidated by the uncertainties regarding ESI"); Daniel J. Lowenberg, Review of Legal Resources: The Electronic Evidence and Discovery Handbook: Forms, Checklists, and Guidelines, 36 COLO. LAW. 66, 66 (Jan. 2007) (stating, "The strictures of Rule 26(a) can be an intimidating prospect for lawyers not confident in their computer savvy and unpracticed in the area of e-discovery"); Jack Seward, Judge Learned Hand, Please Help Them to Help Themselves: History is About to Replicate Itself, 25 AM. BANKR. INST. J. 42, 80 (Sept. 2006) (stating, "The new proposed FRCP for ESI demands that bankruptcy attorneys and forensic accountants become experienced with the tools necessary to do the job, and for those unwilling to change, it's time to consider retirement. But do not wait too long, because [sic] Dec. 1 [the effective date of the amendment] is fast approaching").
(27.) 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & RICHARD L. MARCUS, FEDERAL PRACTICE & PROCEDURE [section] 2218 (3d. ed. 2010).
(28.) The Sedona Conference, The Sedona Principles (Second Edition): Best Practices Recommendations & Principles for Addressing Electronic Document Production (2007), at i, available at http://www.thesedonaconference.org.
(29.) American Bar Association, Civil Discovery Standards, 57-76 (Aug. 2004), available at http://www.abanet.org/litigation/discoverystandards/ 2004civildiscoverystandards.pdf; JAY E. GRENIG & JEFFREY S. KINSLER, HANDBOOK OF FEDERAL CIVIL DISCOVERY AND DISCLOSURE, [section] 13.1.4 (2d ed. 2010).
(30.) FED. R. CIV. P. 34. As amended, Rule 34(a) now provides, in relevant part:
A party may serve on any other party a request within the scope of Rule 26(b) ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control ... any designated documents or electronically stored information--including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations--stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form....
FED. R. CIV. P. 34(a)(1)(A).
(31.) See FED. R. CIV. P. 16(b), 26(f).
(32.) FED. R. CIV. P. 26(f). Rule 26(f) now provides, in pertinent part:
[T]he parties must confer as soon as practicable--and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).... In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.... A discovery plan must state the parties' views and proposals on ... any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced....
FED. R. CIV. P. 26(f)(2), (3)(C).
(33.) FED. R. CIV. P. 26(f)(3)(C).
(34.) FED. R. CIV. P. 16(b).
(35.) FED. R. CIV. P. 16(b).
(36.) FED. R. CIV. P. 26(0(1).
(37.) FED. R. CIV. P. 26(f)(4).
(38.) FED. R. CIV. P. 26(b)(2)(B).
(39.) FED. R. CIV. P. 26(b)(2)(B). The Rule provides:
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
FED. R. CIV. P. 26(b)(2)(B).
(40.) FED. R. CIV. P. 26(b)(2)(B).
(41.) FED. R. CIV. P. 26(b)(2)(B). Whether electronically stored information is "reasonably accessible" and the corresponding consequences are discussed, infra.
(42.) Sedona Principles, supra note 28, at 2.
(43.) FED. R. CIV. P. 26(b)(5)(B).
(44.) FED. R. CIV. P. 26(b)(5)(B). This same protection is provided to non-parties who inadvertently produce protected information. FED. R. CIV. P. 45(d)(2)(B). Additionally, the Federal Rules of Evidence were recently amended to provide further protection from inadvertent disclosure of privileged material. See FED. R. EVID. 502, discussed infra.
(45.) FED. R. CIV. P. 37.
(46.) FED. R. CIV. P. 37(e).
(47.) See Thomas Y. Allman, State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update (Sept. 2, 2009), at 1, 3-4, available at http://www.ediscoverylaw.com/uploads/file/ State%20Rulemaking%20-%20Allman.pdf.
(48.) Allman, supra note 47, at 1 n.2 (citation omitted). The 23 states include Alaska, Arizona, California, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, North Dakota, Ohio, Tennessee, Texas, Utah, and Virginia. Allman, supra note 47, at 1 n.3 Wisconsin may also be on the verge of adopting e-discovery rules, as the state judicial council has filed a petition asking for rules to be enacted by the state supreme court in April of 2009. See Memorandum in Support and Petition of Wisconsin Judicial Council for an Order Amending Wis. Stats. [section][section] 802.10, 804.08, 804.09, 804.12, and 805.07, available at http://www.wicourts.gov/supreme/docs/0901petition.pdf. The court has been considering the petition, which was amended as recently as March 2010. Amended Petition of Wisconsin Judicial Council for an Order Amending Wis. Stats. [section][section] 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, available at http://www.wicourts.gov/supreme/docs/0901 petitionamend.pdf.
Most states neighboring South Dakota have mirrored or substantially mirrored the 2006 amendments to the Federal Rules, including Iowa, Minnesota, and North Dakota. See Allman, supra note 47, at 11, 13, 14. Nebraska adopted more limited e-discovery rules. Id. at 13.
(49.) Sedona Principles, supra note 28, at 9. The Sedona Conference first published its Principles in January of 2004 and has since revised and annotated them on several occasions to comply with changes in judicial treatment of e-discovery. Id. at i. The Second Edition of the Principles was published in June of 2007 to incorporate the 2006 Federal Rules amendments and courts' early treatment of e-discovery following those amendments. Id.
(50.) National Conference of Commissioners on Uniform State Laws, Uniform Rules Relating to the Discovery of Electronically Stored Information, available at http://www.law.upenn.edu/bll /archives/ulc/udoera/2007_final.htm.
(51.) Conference of Chief Justices, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (2006), available at http://www.ncsconline.org/images/EDiscCCJGuidelinesFinal.pdf.
(52.) See, e.g., Ex parte Vulcan Materials Co., 992 So. 2d 1252, 1266 (Ala. 2008); Ex parte Cooper Tire & Rubber Co., 987 So. 2d 1090, 1105 (Ala. 2007).
(53.) Sedona Principles, supra note 28, at 9. The Sedona Conference states:
The volume of reported e-discovery decisions has been smaller in state courts, leading to the misperception that electronic discovery was more prevalent in the types of disputes brought into federal court. As recently as a few years ago, outside the hotly contested areas of divorce law and employment disputes, few reported state court decisions existed. This is quickly changing as electronic discovery becomes more commonplace in state court litigation. The Sedona Principles have played a major role in these early cases.
(54.) In the Matter of the Amendment of the Rules of Professional Conduct, 2004 S.D. Sess. Laws 612.
(55.) S.D. Codified Laws, Rules of Prof'l Conduct, Appendix, Ch. 16-18 ("S.D.R. PROF'L CONDUCT").
(56.) S.D.R. PROF'L CONDUCT 3.4(a).
(57.) S.D.R. PROF'L CONDUCT 3.4(a), cmt. 2 (emphasis added).
(58.) The South Dakota Supreme Court has addressed issues pertaining to spoliation of evidence and discovery violations outside the "electronic discovery realm." See, e.g., State v. Mulligan, 2007 SD 67, 736 N.W.2d 808; State v. Bousum, 2003 SD 58, 663 N.W.2d 257; State v. Engesser, 2003 SD 47, 661 N.W.2d 739; Wuest ex rel. Carver v. McKennan Hosp., 2000 SD 151,619 N.W.2d 682.
(59.) Furthermore, the variety of information available in electronic format, based on different operating systems, word-processing programs, software, and hardware, can be daunting. For instance, California federal courts recently determined that discovery extends even to "random access memory," or RAM, on computers. See Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 (C.D. Cal. 2007). In the Bunnell case, the producing party argued that RAM was not "electronically stored information" subject to production because RAM is only stored in a computer for up to six hours. Id. at 446. However, despite this transitory nature, the court relied on the United States Court of Appeals for the Ninth Circuit and determined that RAM is subject to production because it is "fixed in a tangible medium of expression." Id. at 447-48 (quoting MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 517-18 (9th Cir. 1993)).
(60.) Sedona Principles, supra note 28, at 2.
(61.) Marissa L. P. Caylor, Note, Modernizing the Hague Evidence Convention. A Proposed Solution to Cross-Border Discovery Conflicts During Civil and Commercial Litigation, 28 B.U. INT'L L.J. 341, 350 (2010) (citing GRENIG, supra note 7, [section] 6:5).
(62.) Sedona Principles, supra note 28, at 2-5.
(63.) GRENIG, supra note 7, [section] 6:5.
(64.) Sedona Principles, supra note 28, at 3.
(65.) Greg Birdsong, The Big, New Kidon the Block, 33 MONT. LAW. 37 (Feb. 2008).
(66.) See, e.g., Covad Commc'ns Co. v. Revonet, Inc., 258 F.R.D. 5, 16 (D.D.C. 2009) (stating that "[e]lectronic data is difficult to destroy"); United States v. Patt, No. 06-CR-6016L, 2008 WL 2915433, at *12-13 (W.D.N.Y. July 24, 2008) (quoting an affidavit stating, "A computer will permanently maintain undeleted files and also retain deleted files or fragments thereof for an indefinite period.... Even if a deleted file has been overwritten ... applications which provide access to the internet and also operating systems invariably maintain records (or logs) of activity on the internet, including sites visited, when such visits occurred and whether any files were downloaded") (some ellipses in original); Berkowitz, supra note 7 (stating, "There is also the persistence of e-discovery. You cannot delete it. If you try to delete it, as you know, you are generally not destroying it. It is very hard to delete information from a hard drive. And of course, we all retain forensic experts to go into hard drives, to go into servers and try to get this information back, and we are usually reasonably successful at doing it"); Kevin Bradberry, Electronic Discovery in Georgia: Bringing the State Out of the Typewriter Age, 26 GA. ST. U. L. REV. 551, 556 (2010) (citing Sedona Principles, supra note 28, at 3; GRENIG, supra note 7, [section][section] 1:4, 1:5) (other citations omitted) (stating, "The persistence of digital information compounds this difficulty. Whereas shredding a paper document more or less destroys it permanently, 'deleting' an electronic file does not actually erase the file. Upon deletion, the computer simply removes the file name and makes the space available to write over. As a result, a document 'deleted' years ago could still persist on the drive").
(67.) Lee H. Rosenthal, District Court Judge, United States District Court for the Southern District of Texas, Remarks at the Philip D. Reed Lecture Series, 76 FORDHAM L. REV. 1, 5 (Oct. 2007).
(68.) See, e.g., Covad, 258 F.R.D. at 16 (stating that electronic data leads "to an unfortunate tendency to keep electronically stored information even when any need for it has long since disappeared").
(69.) Sedona Principles, supra note 28, at 3.
(70.) See, e.g., id. at 3-4.
(71.) Birdsong, supra note 65, at 37.
(73.) Sedona Principles, supra note 28, at 4.
(75.) Compare Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418, 425 (D.N.J. 2009) (stating, in dictum, "[T]he producing party ordinarily must take into account the need for metadata to make otherwise unintelligible documents understandable") with Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146, 149 (D. Mass. 2009) (citing Wyeth v. Impax Lab., Inc., 248 F.R.D. 169, 171 (D. Del. 2006)); Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 651 (D. Kan. 2005) (citing Dahl, 655 F. Supp. 2d at 149 (stating, "[C]ase law shows wariness about metadata's value in litigation. Many courts have expressed reservations about the utility of metadata, explaining that it does not lead to admissible evidence and that it can waste parties' time and money")).
(76.) Berkowitz, supra note 7.
(77.) See, e.g., Covad Commc'ns Co. v. Revonet, Inc., 258 F.R.D. 5, 16 (D.D.C. 2009) (stating that "the universe of items to be considered for production is ever expanding with the ubiquity of e-mail and other forms of electronic communication, such as instant messaging and the recording of voice messages").
(78.) Caylor, supra note 61, at 350 (citing GRENIG, supra note 7, [section] 1:3) (stating that electronically stored information may be "incomprehensible without computer software, appearing as a list of binary numbers or characters").
(79.) Byers v. Ill. State Police, No. 99 C 8105, 2002 WL 1264004, at *31-33 (N.D. Ill. May 31, 2002).
(80.) See, e.g., Cord, supra note 26, at 39 (stating, "Attorneys accustomed to paper discovery are often intimidated by the uncertainties regarding ESI"); Lowenberg, supra note 26, at 66 (stating, "The strictures of Rule 26(a) can be an intimidating prospect for lawyers not confident in their computer savvy and unpracticed in the area of e-discovery"); Seward, supra note 26, at 80 (stating, "The new proposed FRCP for ESI demands that bankruptcy attorneys and forensic accountants become experienced with the tools necessary to do the job, and for those unwilling to change, it's time to consider retirement. But do not wait too long, because [sic] Dec. 1 [the effective date of the amendment] is fast approaching").
(81.) Virginia Llewellyn, Electronic Discovery Best Practices, 10 RICH. J.L. & TECH. 51, at *1 (2004). Furthermore, the Sedona Principles advise that attorneys "should have sufficient technical knowledge of production options" "at the outset" of the case. Sedona Principles, supra note 28, at 22.
(82.) Zubulake v. UBS Warburg, LLC, 382 F. Supp. 2d 536 (S.D.N.Y. 2005); Zubulake v. UBS Warburg, LLC, 231 F.R.D. 159 (S.D.N.Y. 2005); Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) ("Zubulake V"); Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) ("Zubulake IV"); Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) ("Zubulake III"); Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003); Zubulake v. UBS Warburg, LLC, 230 F.R.D. 290 (S.D.N.Y. 2003).
(83.) See, e.g., Caylor, supra note 61, at 368 (describing the Zubulake opinions as "a series of influential electronic discovery decisions"); Vlad Vainberg, Comment, When Should Discovery Come with a Bill? Assessing Cost Shifting for Electronic Discovery, 158 U. PA. L. REV. 1523, 1544 (2010) (describing the Zubulake decisions as "influential"); Thomas Y. Allman, Achieving an Appropriate Balance: The Use of Counsel Sanctions in Connection with the Resolution of E-Discovery Misconduct, 15 RICH. J.L. & TECH. 9, 11 (2009) (describing the Zubulake opinions as "seminal"); Robert E. Altman & Benjamin Lewis, Note, Cost-Shifting in ESI Discovery Disputes. A Five Factor Test to Promote Consistency and Set Party Expectations, 36 N. KY. L. REV. 569, 579 (2009) (quoting James M. Evangelista, Polishing the "Gold Standard" on the e-Discovery Cost Shifting Analysis: Zubulake v. UBS Warburg, LLC, 9 J. TECH. L. & POLICY 1, 3 (2004)); Rodney A. Satterwhite & Matthew J. Quatrara, Asymmetrical Warfare: The Cost of Electronic Discovery in Employment Litigation, 14 RICH. J.L. & TECH. 9 at [paragraph] 11 (2008), available at http://jolt.richmond.edu/vl4i3/article9.pdf) (noting that Zubulake is "[o]ne of the seminal cases addressing cost shifting for electronic discovery before the 2006 Amendments); Ben Farrell, Note, Spoliation in a Digital World: Proposing a New Standard of Culpability in Massachusetts for an Adverse Inference Instruction, 14 SUFFOLK J. TRIAL & APP. ADVOC. 110, 114 (2009) (describing the five decisions in Zubulake as "the seminal case about discovery of electronically stored information").
(84.) Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC 685 F. Supp. 2d 456, 461 (S.D.N.Y. 2010).
(85.) Id. at 465 (quoting Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)) (ellipsis in original).
(86.) See, e.g., Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010) (stating, "Generally, the duty to preserve arises when a party 'has notice that the evidence is relevant to litigation or ... should have known that the evidence may be relevant to future litigation'" (quoting John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008))); Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 289 (S.D.N.Y. 2009) (stating, "In general, '[t]he obligation to preserve evidence arises when [a] party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.' The duty to preserve attaches at the time that litigation is reasonably anticipated" (quoting Zubulake IV, 220 F.R.D. at 216-17 (S.D.N.Y. 2003))); Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 171 (E.D.N.Y. 2009) (stating, "The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation" (quoting Fujitsu Ltd. v. Fed. Express Corp. 247 F.3d 423, 436 (2d Cir. 2001))); Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 247 F.R.D. 567, 570 (D. Minn. 2007) (stating, "The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation" (quoting Fujitsu Ltd., 247 F.3d at 436)).
(87.) Pension Comm., 685 F. Supp. 2d at 466.
(88.) Richard Green, 262 F.R.D. at 289.
(89.) Pension Comm., 685 F. Supp. 2d at 461; Richard Green, 262 F.R.D. at 289; Beard Research, Inc. v. Kates, 981 A.2d 1175, 1185 (Del. Ch. 2009).
(90.) Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 621 (D. Colo. 2007) (quoting Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992)).
(91.) Scalera, 262 F.R.D. at 174.
(92.) Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010) (citing Pension Comm., 685 F. Supp. 2d at 464-65).
(93.) Sedona Principles, supra note 28, at 9. The Sedona Conference has also published a document entitled, "Commentary on Legal Holds: the Trigger & the Process," including six factual illustrations of when the duty to preserve is or is not triggered. The Sedona Conference, Commentary on Legal Holds: the Trigger & the Process (2007), at 7, available at http://www.thesedonaconference.org.
(94.) Legal Holds, supra note 93, at 9.
(95.) 251 F.R.D. 172 (D. Md. 2008).
(96.) Sampson, 251 F.R.D. at 175.
(98.) Id. at 181.
(99.) Id. (quoting Silvestri, 271 F.3d at 591).
(100.) Sampson, 251 F.R.D. at 175. As discussed further below, the Sampson case illustrates a good practice on the part of plaintiffs' counsel; sending an evidence-preservation letter is a good litigation practice that can help a plaintiff both generally trigger the defendant's duty to preserve and specifically define the scope of information to be preserved.
(101.) For example, an employee or former employee wishing to sue under Title VII of the Civil Rights Act of 1964 for discrimination based on race, sex, national origin, or religion must first file a charge with the EEOC and complete the investigation process. Lewis v. City of Chicago, 130 S. Ct. 2191, 2196 (2010) (quoting 28 U.S.C. [section] 2000e-5(e)(1)).
(102.) Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 171 (E.D.N.Y. 2009); Zubulake IV, 220 F.R.D. 212,216 (S.D.N.Y. 2003).
(103.) 262 F.R.D. 162 (E.D.N.Y. 2009).
(104.) Scalera, 262 F.R.D. at 171.
(105.) Id. at 172.
(106.) See, e.g., Toussie v. County of Suffolk, No. CV 01-6716(JS)(ARL), 2007 WL 4565160, at *6 (E.D.N.Y. Dec. 21, 2007) (stating, in dictum, that duty to preserve could be triggered when a "substantial number of key personnel anticipated litigation" based on employee's internal complaint); Zubulake IV, 220 F.R.D. at 216, 217 (stating that "the duty to preserve may have arisen even before the EEOC complaint was filed" because several key employees feared litigation following employee's internal complaint).
(107.) Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 511 (D. Md. 2009) (quoting SHIRA A. SCHEINDLIN, DANIEL J. CAPRA, & THE SEDONA CONFERENCE, ELECTRONIC DISCOVERY AND DIGITAL EVIDENCE: CASES AND MATERIALS 106 (2008)). Courts have determined that similar letters can trigger the duty to preserve in a copyright infringement suit. See Arista Records LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 430 (S.D.N.Y. 2009). For instance, the Southern District of New York has stated, "Where copyright infringement is alleged, and a cease and desist letter issued, such a letter triggers the duty to preserve evidence, even prior to the filing of litigation." Id.
(108.) 632 F. Supp. 2d 494 (D. Md. 2009)
(109.) Goodman, 632 F. Supp. 2d at 511.
(111.) No. 07-cv-01379-WYD-CBS, 2009 WE 1328483 (D. Colo. May 12, 2009)
(112.) Asher Assocs., 2009 WL 1328483, at *8.
(113.) Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 623 (D. Colo. 2007).
(114.) 251 F.R.D. 191 (D.S.C. 2008).
(115.) Nucor Corp., 251 F.R.D. at 193.
(117.) Id. at 195.
(118.) Id. Bell also told another Nucor employee on multiple occasions in 2006 that he thought Nucor was going to sue him. Id.
(119.) Id. at 196.
(120.) As discussed above, an individual or entity need not be party to actual litigation before the duty to preserve attaches. However, for simplicity, this article uses the term "litigant" as a substitute for any individual or entity subject to a duty to preserve.
It should also be noted that individuals and businesses not otherwise subject to a duty to preserve may have such a duty triggered upon receipt of a subpoena for paper and electronic documents. See, e.g., Usher v. Otis Elevator Co., Inc., No. 08-ADMS-70007, 2009 WL 1580318, at *3 (Mass. App. Div. June 2, 2009) (quoting Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420, 425 (Mass. 2002)); Fletcher, 773 N.E.2d at 425. In any event, attorneys should always bear in mind than every Rule 45 subpoena includes electronically stored information. FED. R. CIV. P. 45; Sedona Principles, supra note 28, at 43.
(121.) See Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 289 (S.D.N.Y. 2009) (stating, "When the duty to preserve attaches, a litigant 'must suspend [her] routine document retention/destruction policy and put in place a "litigation hold" to ensure the preservation of relevant documents'" (quoting Zubulake V, 229 F.R.D. 422, 431 (S.D.N.Y. 2004)); Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 171 (E.D.N.Y. 2009) (stating that a party under a duty to preserve "must not destroy unique, relevant evidence that might be useful to an adversary" and "at a minimum" must "suspend its routine document and retention/destruction policy and [put] in place a litigation hold" (quoting Zubulake IV, 220 F.R.D. 212, 217, 218 (S.D.N.Y. 2003))).
(122.) 685 F. Supp. 2d 456 (S.D.N.Y. 2010).
(123.) Pension Comm., 685 F. Supp. 2d at 464.
(124.) Scalera, 262 F.R.D. 162 at 177 (quoting Zubulake V, 229 F.R.D. at 433-34). However, counsel should also be aware that there exist situations in which a litigation hold is "unnecessary" or "inadvisable," such as when the relevant information has already been secured or when the notice of a litigation hold itself may cause the employee under investigation to destroy evidence. Sedona Principles, supra note 28, at 32.
(125.) Scalera, 262 F.R.D. 162 at 177 (quoting Zubulake V, 229 F.R.D. at 434).
(126.) Richard Green, 262 F.R.D. at 289 (quoting In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 197 (S.D.N.Y. 2007)).
(127.) Id. (quoting Qualcomm Inc. v. Broadcom Corp., No. 05 cv1958-B (BLM), 2008 WL 66932, at *9 (S.D. Cal. Jan. 7, 2008), vacated in part on other grounds, 2008 WL 638108 (S.D. Cal. March 5, 2008)).
(128.) Id. (quoting Zubulake V, 229 F.R.D. at 432).
(129.) Id. (citing Zubulake V, 229 F.R.D. at 433).
(130.) 262 F.R.D. 284 (S.D.N.Y. 2009).
(131.) Richard Green, 262 F.R.D. at 290 (quoting Qualcomm, 2008 WL 66932, at *9). Furthermore, in its "Commentary" on litigation holds, the Sedona Conference proposed 11 guidelines that counsel should follow in implementing a litigation hold, including that (a) "reasonable steps should be taken to identify and preserve relevant information as soon as is practicable"; (b) "[d]epending on the circumstances, a written legal hold (including a preservation notice to persons likely to have relevant information) should be issued"; (c) counsel should determine the scope of the information subject to a litigation hold, including "the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy"; (d) "[t]he legal hold policy and process of implementing the legal hold in a specific case should be documented"; (e) "[t]he implementation of a legal hold should be regularly monitored to ensure compliance"; and, (f) "[t]he legal hold process should include provisions for the release of the hold upon the termination of the matter at issue." Legal Holds, supra note 93, at 3-4.
(132.) Recommendations for shaping a client's document-retention process prior to or outside of a litigation-hold setting are discussed, infra.
(133.) Sometimes referred to below as "IT."
(134.) Lauren Katz, A Balancing Act: Ethical Dilemmas in Retaining E-Discovery Consultants, 22 GEO. J. LEGAL ETHICS 929, 936 (2009) (quoting Janet H. Kwuon & Karen Wan, High Stakes for Missteps in EDD, NAT'L L.J., Dec. 31, 2007, available at http://www.law.com/jsp/lawtechnologynews/ PubArticleLTN.jsp?id=1197540285068).
(135.) Katz, supra note 134, at 936 (citing Gregory D. Shelton, Providing Competent Representation in the Digital Information Age, 74 DEF. COUNS. J. 261, 264-65 (2007) quoting Zubulake V, 229 F.R.D. 422, 432 (S.D.N.Y. 2004)).
(136.) Katz, supra note 134, at 937.
(137.) Id. (quoting Zachary Wang, Ethics and Electronic Discovery. New Medium, Same Problems, 75 DEF. COUNS. J. 328, 330 (2008)).
(138.) How the Federal Rules treat electronically stored information that is "inaccessible" is discussed, infra.
(139.) While this article focuses on electronically stored information, the same steps and concepts are equally applicable to preserving documentation that is only available in paper format.
(140.) See FED. R. CIV. P. 26. It is important to remember that Rule 26 sets a broader standard for "relevant" or "discoverable" information than for "admissibility" under the Federal Rules of Evidence. Id. See also Lamar Adver. of S.D., Inc. v. Kay, No. CIV. 07-5091-KES, 2010 WL 758786, at *2-4 (D.S.D. Mar. 1, 2010) (quoting Fed. R. Civ. P. 26(b)(1)) (discussing relevance and discoverability in contrast to admissibility); United States v. Three Bank Accounts, Nos. CIV. 05-4145-KES, CIV. 06-4005-KES, 2008 WL 915199, at *8 (D.S.D. Apr. 2, 2008) (discussing distinction between discoverability and admissibility at trial); Davis v. Union Pac. R.R. Co., No. 4:07CV00521 BSM, 2008 WL 3992761, at *2 (E.D. Ark. Aug. 26, 2008) (citations omitted) (same). Furthermore, as the United States District Court for the Eastern District of Arkansas has determined, "As the Federal Rules of Civil Procedure allow for broad discovery, the burden is on the party resisting discovery to establish that the discovery should be limited." Id. (citing Masters v. UHS of Del., Inc., No. 4:06CVI850-DJS, 2007 WL 31220015, at *1 (E.D. Mo. Oct. 23, 2007)).
(141.) See FED. R. CIV. P. 11 (governing representations to the court and sanctions).
(142.) A party's culpability in losing or destroying discoverable information and the consequences of such spoliation are discussed, infra.
(143.) 247 F.R.D. 567 (D. Minn. 2007).
(144.) Best Buy, 247 F.R.D. at 568.
(146.) Id. at 570.
(148.) Legal Holds, supra note 93, at 4.
(149.) Sedona Principles, supra note 28, at 32.
(152.) Id. This is especially true for large organizational clients that may generate a vast amount of electronic and paper documentation on a regular basis.
(153.) See Major Tours, Inc. v. Colorel, No. 05-3091 (JBS/JS), 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009) (stating, "As a general matter hold letters are not discoverable, particularly when a party has made an adequate showing that the letters include material protected under attorney-client privilege or the work-product doctrine"). But see In re eBay Seller Antitrust Litig., No. C 07-01882 JF (RS), 2007 WL 2852364, *2 n.3 (N.D. Cal. Oct. 2, 2007) (stating, "Whether the privilege or work product protection would apply to instructions regarding document retention or collection is far from certain. In light of the conclusions reached in the remainder of this order, however, the Court need not decide that question at this time").
(154.) Major Tours, 2009 WL 2413631, at *2 (quoting Gibson v. Ford Motor Co., 510 F. Supp. 2d 1116, 1123 (N.D. Ga. 2007)).
(155.) Id.; Phillip J. Duffy & Melissa C. Fulton, ESI Preservation Efforts Exposed: Erosion of Privilege Protection for Litigation Hold Notices and Related Materials, 196 N.J. L.J. 429 (2009) (citing United Med. Supply Co., Inc. v. United States, 77 Fed. Cl. 257, 272-74 (2007)).
(156.) No. C 07-01882 JF (RS), 2007 WL 2852364 (N.D. Cal. Oct. 2, 2007).
(157.) eBay, 2007 WL 2852364, at *2.
(159.) Id. (footnote omitted).
(160.) Id. Furthermore, the court in eBay went on to require eBay to disclose the exact identities of all 600 employees who received the litigation-hold letters because such information had not been shown as privileged. Id. at *3.
(161.) See id. at *2.
(162.) Jason Fliegel & Robert Entwisle, Electronic Discovery in Large Organizations, 15 RICH. J.L. & TECH. 7, 38 (2009).
(164.) Id. Counsel should be cautious, however, in disclosing the contents of a litigation-hold letter because courts have considered voluntary disclosure to be a broader waiver of the attorney-client privilege and work-product doctrine. Duffy, supra note 155, at 429 (citing In re Intel Corp. Microprocessor Antitrust Litig., 258 F.R.D. 280 (D. Del. 2008)). As such, counsel would be prudent in first seeking to submit this type of information to the court for an in camera review in order to preserve claims of privilege. Fliegel, supra note 162, at 38.
(165.) For instance, while not tailored for every possible lawsuit, the Sedona Conference included a sample certification that each recipient can return to the attorney in its "Commentary on Legal Holds: the Trigger & the Process." Legal Holds, supra note 93, at 20.
(166.) See Sedona Principles, supra note 28, at 32 (stating, "Parties also should consider whether notice must be sent to third parties, such as contractors and vendors, including those that provide information technology services. This concern arises out of Rule 34, which frames a party's obligation in terms of its possession, custody, or control of documents"). Many courts have defined "control" in the context of document production, stating that control involves the "legal right to obtain documents on demand." See Lopez v. Chertoff, No. CV 07-1566-LEW, 2009 WL 1575214, at *1 (E.D. Cal. June 02, 2009) (quoting FTC v. Braswell, No. CV 03-3700 DT (PJWX), 2005 U.S. Dist. LEXIS 42817, at *8 (C.D. Cal. Sept. 26, 2005)). For example, in Lopez v. Chertoff, it was determined that former employees were not in "control" of documents held by a former employer because they could not obtain the documents on demand. Id. (quoting Lowe v. District of Columbia, 250 F.R.D. 36, 38 (D.D.C. 2008)).
(167.) Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 290 (S.D.N.Y. 2009) (quoting In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 197-98 (S.D.N.Y. 2007)).
(168.) See, e.g., Sedona Principles, supra note 28, at 32 (discussing situation in which litigation-hold notice is "inadvisable" because the notice of a litigation hold itself may cause the employee under investigation to destroy evidence).
(172.) Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC., 685 F. Supp. 2d 456, 473 (S.D.N.Y. 2010).
(177.) Id. (footnotes omitted).
(178.) See Pension Comm., 685 F. Supp. 2d at 473.
(179.) Legal Holds, supra note 93, at 15.
(180.) Id. at 15-16.
(181.) Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 171 (E.D.N.Y. 2009).
(182.) Id. at 176.
(185.) Id. at 177.
(187.) Scalera, 262 F.R.D. at 177.
(188.) Id. (citing Zubulake V, 229 F.R.D. 422, 434 (S.D.N.Y. 2004)).
(189.) Scalera, 262 F.R.D. at 177-78.
(190.) Richard Green (Fine Painting) v. McClendon, 262 F.R.D. 284, 286-87 (S.D.N.Y. 2009).
(191.) Id. at 287.
(193.) Id. at 287-88.
(194.) Id. at 290 (quoting In re NTL, Inc. Securities Litigation, 244 F.R.D. 179, 197-98 (S.D.N.Y. 2007); Qualcomm Inc. v. Broadcom Corp., 05 Civ.1958-B, 2008 WL 66932, at *9 (S.D. Cal. Jan.7, 2008)).
(195.) Richard Green, 262 F.R.D. at 290.
(196.) FED. R. CW. P. 34(b)(1)(C).
(197.) FED. R. CW.P. 16(b).
(198.) See. e.g., Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146, 148 (D. Mass. 2009) (emphasizing need for discovery to proceed "in an organized and managed fashion" and citing recent Supreme Court "frustration with trial courts' supervision of discovery" (citing Ashcroft v. lqbal, 129 S. Ct. 1937, 1953 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007)); Beard Research, Inc. v. Kates, 981 A.2d 1175, 1187 (Del. Ch. 2009) (stating that electronic data "is likely to be lost during the course of litigation through routine business practices or otherwise" and that this potential for loss "counsel[s] strongly in favor of early and, if necessary, frequent communications among counsel fur opposing litigants to determine how discovery of ESI will be handled").
Another example of issues the parties should discuss during their preliminary planning conference is the existence of and procedure for handling situations of deleted information. As the Sedona Conference noted, only exceptional cases will turn on deleted information and, thus, there should not be a routine duty to attempt to restore deleted information. Sedona Principles, supra note 28, at 50. But it is an issue that parties should confer about. Id.
(199.) 981 A.2d 1175 (Del. Ch. 2009).
(200.) Beard Research, 981 A.2d at 1187.
(201.) Mirbeau of Geneva Lake LLC v. City of Lake Geneva, No. 08-CV-693, 2009 WL 3347101, at *3 (E.D. Wis. Oct. 15, 2009).
(202.) Id. at *3 n.4.
(203.) No. 3:07-cv-449, 2009 WL 2243854 (S.D. Ohio July 24, 2009).
(204.) Wells Fargo, 2009 WL 2243854, at *2-3.
(205.) FED. R. CIV. P. 26(a)(1)(A)(ii).
(206.) The court in Pension Committee termed "collection and review" the second major step in the discovery process. Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC., 685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010).
(208.) Id. ("failure to take all appropriate measures to preserve ESI" (citing Treppel v. Biovail, 249 F.R.D. 111, 121 (S.D.N.Y. 2008)); ("failure to collect information from the files of former employees" (citing Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 627-28 (D. Colo. 2007)); ("failure to assess the accuracy and validity of selected search terms" (citing Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 259-62 (D. Md. 2008)). The impact of whether loss or destruction of evidence is designated as negligent, grossly negligent, intentional, or in bad faith is discussed, infra.
(209.) See, e.g., Richard Green (Fine Painting) v. McClendon, 262 F.R.D. 284, 290 (S.D.N.Y. 2009). (quoting Tarlton v. Cumberland County Corr. Facility, 192 F.R.D. 165, 170 (D.N.J. 2000)). The court in Richard Green quoted:
The client is charged with knowledge of what documents it possesses. The defendant's counsel cannot simply react to plaintiff's fortuitous discovery of the existence of relevant documents by making disjointed searches, each time coming up with a few more documents, and each time representing that was all they had. Under the federal rules, the burden does not fall on plaintiff to learn whether, how and where defendant keeps relevant documents.
Richard Green, 262 F.R.D. at 290 (quoting Tarlton, 192 F.R.D. at 170).
(210.) Mirbeau of Geneva Lake LLC v. City of Lake Geneva, No. 08-CV-693, 2009 WL 3347101, at *1 (E.D. Wis. Oct. 15, 2009) (quoting Auto Club Family Ins. Co. v. Ahner, No. 05-5723, 2007 WL 2480322, *4 (E.D. La. Aug. 29, 2007)). Despite articulating this rule, the court in Mirbeau eventually denied the requesting party's motion to compel production of electronic documents, at least for the present time, and determined that production of paper copies was sufficient because "while receiving a 'paper form' of the electronic communication from the defendants may be less helpful than an electronic form, the plaintiff has failed to demonstrate why a more rigorous discovery process, with extensive forensics analysis of the computers by the plaintiffs, [was] needed in this case." Mirbeau, 2009 WL 3347101, at *2.
(211.) Id. at * 1 (quoting In re Ford Motor Co., 345 F.3d 1315, ! 317 (11th Cir. 2003)).
(212.) Sedona Principles, supra note 28, at 19.
(216.) See Katz, supra note 134, at 939.
(217.) No. I:07CV23-SPM/AK, 2008 WL 4098329 (N.D. Fla. Aug. 29, 2008).
(218.) Katz, supra note 134, at 937-38 (citing Infinite Energy, Inc. v. Thai Heng Chang, No. 1:07CV23-SPM/AK, 2008 WL 4098329, at *1 (N.D. Fla. Aug. 29, 2008)).
(219.) Katz, supra note 134, at 938 (citing Infinite Energy, 2008 WL 4098329, at *l).
(220.) Katz, supra note 134, at 938.
(221.) Sedona Principles, supra note 28, at 19.
(222.) Katz, supra note 134, at 941, 942-43 (citing MODEL RULES OF PROF'L CONDUCT R. 1.5, 5.3).
(223.) See, e.g., Sedona Principles, supra note 28, at 40 (explaining, "[E-discovery] consultants can be of great assistance to parties and courts in providing technical expertise and experience with the collection, review, and production of electronically stored information. However, parties should carefully consider the experience and expertise of a potential consultant before his or her selection, as standards for experts and consultants in this field have not been fully developed"); Michele C.S. Lange & Kristin M. Nimsger, Working With an E-Discovery Service Provider, 6 NO. 3 ABA SCITECH LAW. 12, 13 (2010) ("This article examines the considerations the litigation team should address when determining whether to manage an electronic discovery production in-house or consult with a service provider, and outlines the time-tested considerations for selecting an e-discovery service provider").
(224.) A comprehensive analysis of identifying, interviewing, selecting, retaining, and supervising an e-discovery consultant is beyond the scope of this Article. However, several commentators have addressed the issue, and attorneys seeking additional information should have little difficulty finding information in this area. See, e.g., Sedona Principles, supra note 28; The Sedona Conference, Best Practices for the Selection of Electronic Discovery Vendors: Navigating the Vendor Proposal Process (2007), available at http://www.thesedonaconference.org; Katz, supra note 134; Lange, supra note 223.
(225.) Sedona Principles, supra note 28, at 40.
(226.) Id. at 38.
(227.) No. 08-CV-693, 2009 WL 3347101 (E.D. Wis. Oct. 15, 2009).
(228.) Mirbeau, 2009 WL 3347101, at *2.
(230.) Id. at *2 n.3. Courts have also chided parties (and the legal community at large) for failing to meet and confer about the particular methodology for a search, including pertinent search terms. See, e.g., William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009) (stating, "This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or 'keywords' to be used to produce emails or other electronically stored information"). However, courts have not gone so far as to regularly require parties' experts to confer with one another about the producing party's search methodology. See, e.g., D'Onofrio v. SFX Sports Group, Inc., 256 F.R.D. 277, 281 (D.D.C. 2009) (stating, "I agree with [the producing party] that there is no need for the additional step of requiring [the producing party's] expert to consult with [the requesting parties'] consulting expert prior to conducting the sample. I will require [the producing party] to explain her expert's methodology to the [requesting parties] once the sampling is done and [the requesting parties] can then consult with whomever they like").
(231.) Sedona Principles, supra note 28, at 57.
(232.) Search & Retrieval, supra note 8, at 203.
(234.) Sedona Principles, supra note 28, at 26.
(236.) See id. at 58.
(237.) See id.
(238.) 257 F.R.D. 418 (D.N.J. 2009).
(239.) Edgewood, 257 F.R.D. at 426-27.
(240.) Id. at 427 (quoting Search & Retrieval, supra note 8, at 194).
(241.) Edgewood, 257 F.R.D. at 427
(243.) 256 F.R.D. 134 (S.D.N.Y. 2009).
(244.) Gross Constr., 256 F.R.D. at 135 (quoting Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. 2008)) (ellipsis in original).
(245.) Id. (quoting United States v. O'Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008)). The Gross Construction court determined that it need not decide whether expert assistance was required, but instead warned, "[W]hat is required is something other than a lawyer's guesses, without client input, and without any quality control testing to see if the search terms produce reasonably all the responsive ESI and limited 'false positives.'" Gross Constr., 256 F.R.D. at 136 n.3.
While details on how to design a manual or automated search is beyond the scope of this article, the Sedona Conference has provided eight "practice points" on using automated searches as well as a methodology for assessing the effectiveness of a document-retrieval and search protocol through mathematical ratios. See Search & Retrieval, supra note 8, at 193-95, 205.
(246.) See, e.g., In re Zurn Pex Plumbing Prods. Liab. Litig., No. 08-1958 ADM/RLE, 2009 WL 1606653, at *2-3 (D. Minn. June 5, 2009) (ordering the producing party to search particular places for responsive electronically stored information using 14 specific search terms).
(247.) See Sedona Principles, supra note 28, at 57 (stating, "Organizations should internally address search terms and other filtering criteria as soon as possible so that they can begin a dialogue on search methods as early as tile initial discovery conference.... Absent an agreement on the search methods to be used, parties should expect that their choice of search methods will need to be explained, either formally or informally, in subsequent legal contexts, including in depositions, evidentiary proceedings, and possibly even at trial"); Search & Retrieval, supra note 8, at 195 (stating, "Parties should expect that their choice of search methodology will need to be explained, either formally or informally, in subsequent legal contexts (including in depositions, evidentiary proceedings, and trials)").
(248.) Although outside the scope of this article, another significant consideration in seeking e-discovery is its later admissibility. As discussed above, while admissibility under the Federal Rules of Evidence is a narrower concept than discoverability under the Federal Rules of Civil Procedure, eventual admission of the evidence obtained during discovery should be considered at all points during litigation. A variety of sources on the admissibility of electronic evidence exist to aid attorneys in this respect. See, e.g., 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & RICHARD L. MARCUS, FEDERAL PRACTICE & PROCEDURE [section] 2218 (3d. ed. 2010); The Sedona Conference, Commentary on ES1 Evidence & Admissibility (2008), available at http://www.thesedonaconference.org; Steven Goode, The Admissibility of Electronic Evidence, 29 REV. LITIG. 1 (2009).
(249.) FED. R. CIV. P. 26(c).
(250.) See Sedona Principles, supra note 28, at 33.
(251.) Id. at 25. The Sedona Principles provide:
A requesting party that seeks production of electronically stored information should, to the greatest extent practicable, clearly and specifically indicate the types of electronic information it seeks. Such discovery requests should go beyond boilerplate definitions seeking all email, databases, word processing files, or whatever other electronically stored information the requesting party can generally describe. Instead, the request should target particular electronically stored information that the requesting party contends is important to resolve the case. By identifying relevant individuals and topics, parties can avoid the sort of blanket, burdensome requests for electronically stored information that invite blanket objections and judicial intervention.
(252.) FED. R. CIV. P. 34(b)(1)(A); Lopez v. Chertoff, No. CV 07-1566-LEW, 2009 WL 1575214, at * 2 (E.D. Cal. June 02, 2009) (quoting FED. R. CIV. P. 34(b)(1)(A)).
(253.) Lopez, 2009 WL 1575214, at *2 (quoting Mallinckrodt Chem. Works v. Goldman, Sachs & Co., 58 F.R.D. 348, 353 (S.D.N.Y. 1973); Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 202 (N.D.W. Va. 2000)).
(254.) Lopez, 2009 WL 1575214, at *2 (citing Kidwiler, 192 F.R.D. at 202; Devore v. City of Phila., No. Civ. A. 00-3598, 2002 WL 32341801, at *2 (E.D. Pa. Nov. 14, 2002)).
(255.) Lopez, 2009 WL 1575214, at *3. See also Aponte-Navedo v. Nalco Chem. Co., 268 F.R.D. 31, 38 (D.P.R. 2010) (citing Martinez v. Cornell Corrs. of Tex., 229 F.R.D. 215, 218 (D.N.M. 2005)); Rodriguez-Torres v. Gov't Dev. Bank of P.R., 265 F.R.D. 40, 44 (D.P.R. 2010).
(256.) No. CV 07-1566-LEW, 2009 WL 1575214 (E.D. Cal. June 02, 2009).
(257.) Lopez, 2009 WE 1575214, at *2.
(258.) 268 F.R.D. 31 (D.P.R. 2010).
(259.) Aponte-Navedo, 268 F.R.D. at 38.
(261.) Id. (citing Martinez, 229 F.R.D. at 218).
(262.) Aponte-Navedo, 268 F.R.D. at 38.
(263.) 265 F.R.D. 40 (D.P.R. 2010).
(264.) Rodriguez-Torres, 265 F.R.D. at 43.
(265.) Particular issues related to reasonable accessibility are discussed, infra.
(266.) Rodriguez-Torres, 265 F.R.D. at 44.
(269.) Id. The District of New Jersey, in Edgewood, reached a similar result, determining that it would not compel discovery based on a broad, overly burdensome request without some showing that the producing party had withheld information or done something otherwise improper. Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418, 427-28 (D.N.J. 2009). The court reasoned that a "conclusory allegation" that a requesting party "suspects it has not received all of the documents to which it is entitled" was solely "nefarious speculation" and had failed to persuade many courts to compel discovery or sanction producing parties. Id. (citing Margel v. E.G.L. Gem Lab Ltd., No. 04-1514, 2008 WL 2224288, at *3 (S.D.N.Y. May 29, 2008); Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 n. 7 (S.D.N.Y. 1992); U.S. v. O'Keefe, 537 F. Supp. 2d 14, 22 (D.D.C.2008)).
(270.) FED. R. CIV. P. 34(b)(1)(C).
(271.) FED. R. CIV. P. 34(b)(2)(E). If, in rare cases, a court requires a party to produce electronically stored information in multiple formats, the Sedona Conferences recommended that such a court consider shifting the cost of production to the requesting party. Sedona Principles, supra note 28, at 66. Generally speaking, each party is responsible for the costs of producing the information within its control. Laethem Equip. Co. v. Deere & Co., 261 F.R.D. 127, 145 (E.D. Mich. 2009) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978)); Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146, 148 (D. Mass. 2009) (citing Oppenheimer, 437 U.S. at 358; Zubulake III, 216 F.R.D. 280, 283 (S.D.N.Y. 2003)). However, there are circumstances under which the requesting party may be required to pay production costs, including instances when the requesting party seeks multiple production formats for electronically stored information. Sedona Principles, supra note 28, at 66. Other cost-shifting factors are discussed, infra.
(272.) "Portable [d]ocument [f]ormat," also known as .pdf (for the file extension) or PDF, is:
An imaging file format technology developed by Adobe Systems. PDF captures formatting information from a variety of applications in such a way that they can be viewed and printed as they were intended in their original application by practically any computer, on multiple platforms, regardless of the specific application in which the original was created. PDF files may be text-searchable or image-only. Adobe Reader, a free application distributed by Adobe Systems, is required to view a file in PDF format. Adobe Acrobat, an application marketed by Adobe Systems, is required to edit, capture text, or otherwise manipulate a file in PDF format.
Sedona Glossary, supra note 9, at 39.
(273.) "Tagged [i]mage [f]ile [f]ormat," also known as .tif or TIFF, is:
A widely used and supported graphic file formats for storing bit-mapped images, with many different compression formats and resolutions. File name has .TIF extension. Can be black and white, gray-scaled, or color. Images are stored in tagged fields, and programs use the tags to accept or ignore fields, depending on the application. The format originated in the early 1980s.
Sedona Glossary, supra note 9, at 51.
(274.) Sedona Glossary, supra note 9, at 35. In its Formal Opinion on the review and use of metadata (not specifically in the e-discovery context), the American Bar Association explained:
Metadata is ubiquitous in electronic documents. For example:
* Electronic documents routinely contain as embedded information the last date and time that a document was saved, and data on when it last was accessed. Anyone who has an electronic copy of such a document usually can "right click" on it with a computer mouse (or equivalent) to see that information.
* Many computer programs automatically embed in an electronic document the name of the owner of the computer that created the document, the date and time of its creation, and the name of the person who last saved the document. Again, that information might simply be a "right click" away.
* Some word processing programs allow users, when they review and edit a document, to "redline" the changes they make in the document to identify what they added and deleted. The redlined changes might be readily visible, or they might be hidden, but even in the latter case, they often will be revealed simply by clicking on a software icon in the program.
* Some programs also allow users to embed comments in a document. The comments may or may not be flagged in some manner, and they may or may not "pop up" as a cursor is moved over their locations.
ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 06-422 (2006), available at http://www.abanet.org/abanet/common/login/securedarea.cfm?areaType= member&role=abanetmo&url=/cpr/mo/06_442.pdf.
(275.) FED. R. CIV. P. 34.
(276.) Sedona Principles, supra note 28, at 62.
(277.) In its Glossary, the Sedona Conference defines metadata as:
Data typically stored electronically that describes characteristics of ESI, found in different places in different forms. Can be supplied by applications, users or the file system. Metadata can describe how, when and by whom ESI was collected, created, accessed, modified and how it is formatted. Can be altered intentionally or inadvertently. Certain metadata can be extracted when native files are processed for litigation. Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. Metadata is generally not reproduced in full form when a document is printed to paper or electronic image.
Sedona Glossary, supra note 9, at 33.
(278.) Sedona Principles, supra note 28, at 62.
(280.) Id. To "redact" a legal document is "to edit out or mask the privileged, impertinent, or objectionable matter ..." DICTIONARY OF MODERN LEGAL USAGE 771 (2d ed. 1995). Not only is redaction important from the producing party's perspective as it relates to privileged information, but redaction is important to both parties because many state and federal courts require redaction of personal identifying information pursuant to the E-Government Act of 2002. For example the local rules in South Dakota federal court require redaction of Social Security numbers and Taxpayer Identification numbers, minors' names, dates of birth, financial account numbers, and home addresses. D.S.D.R. 5.2(A). These items must be redacted from any document actually filed with the court and, as such, it can be up to both requesting and producing parties to monitor redaction. D.S.D.R. 5.2(C).
(281.) Sedona Principles, supra note 28, at 63.
(284.) Id. at 4.
(285.) Compare Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418, 425 (D.N.J. 2009) (stating, in dictum, "[T]he producing party ordinarily must take into account the need for metadata to make otherwise unintelligible documents understandable") with Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146, 149 (D. Mass. 2009) (citations omitted) (stating, "[C]ase law shows wariness about metadata's value in litigation. Many courts have expressed reservations about the utility of metadata, explaining that it does not lead to admissible evidence and that it can waste parties' time and money").
(286.) In re Netbank, Inc. Sec. Litig., 259 F.R.D. 656, 681 (N.D. Ga. 2009). If parties cannot reach an agreement or a dispute about production format arises otherwise, the parties can raise disputes about the issue in a number of ways. The Sedona Conference explained:
The parties may raise any inability to reach agreement at the Rule 16(b) conference so that the court can give initial guidance. The court may place the issue on the calendar for formal resolution, recognizing the possible need for evidence from experts, IT personnel and business users. Parties may also raise the issue by motions--either a motion to compel by the requesting party under Rule 37 or a motion for a protective order by the responding party under Rule 26(c). However, the rules require, and the courts encourage, the parties to attempt to meet and resolve any dispute before filing such motions.
Sedona Principles, supra note 28, at 65.
(287.) 260 F.R.D. 5 (D.D.C. 2009).
(288.) Covad, 260 F.R.D. at 9 (quoting FED. R. CIV. P. 34(b)(E)(ii)). Like the Covad court, which determined that electronically created documents should be produced electronically, other courts have determined that the printing of electronically stored information is no longer sufficient. See Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 175 (E.D.N.Y. 2009); In re Tamer, 877 N.Y.S.2d 874, 876 (N.Y. Sur. Ct. 2009) (citation omitted) (stating, under New York law, that "[i]t is implicit that where a party seeks electronic discovery, the responding party will produce the information sought by some form of electronic means"). But see Executive Air Taxi Corp. v. City of Bismarck, 518 F.3d 562, 569 (8th Cir. 2008) (determining that district court did not abuse discretion in refusing to allow expert to conduct forensic investigation of computer to search for emails because emails had been provided in hard copy and forensics could expose confidential or privileged material).
(289.) Covad, 260 F.R.D. at 9 (quoting FED R. CIV. P. 34, Advisory Committee's Note to the 2006 Amendment).
(290.) Covad, 260 F.R.D. at 9 (citing Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146, 150 (D. Mass. 2009) (requiring production of spreadsheets in native format); In re Classicstar Mare Lease Litig., No. 5:07-CV-353-JMH, 2009 WL 260954, at *3 (E.D. Ky. Feb. 2, 2009) (production may not degrade searchability); Goodbys Creek, LLC v. Arch Ins. Co., No. 3:07-CV-947-J-34HTS, 2008 WL 4279693, at *3 (M.D. Fla. Sept. 15, 2008) (same; conversion of e-mails from native format to TIFF not acceptable); White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning, 586 F. Supp. 2d 1250, 1264 (D. Kan. 2008) (same); L.H. v. Schwarzenegger, No. CIV S-06-2042 LKK GGH, 2008 WL 2073958, at *3 (E.D. Cal. May 14, 2008) (same); United States v. O'Keefe, 537 F. Supp. 2d 14, 23 (D.D.C. 2008) (applying principle in criminal case)).
(291.) 259 F.R.D. 656 (N.D. Ga. 2009).
(292.) Netbank, 259 F.R.D. at 681.
(294.) Id. (footnotes omitted).
(295.) Id. at 681-82. Another "form of production" issue is found in United States v. 11 Bank Accounts, in which the requesting party had asked to see the producing party's computers and the court ordered the producing party to leave the computers intact for the requesting party's review. No. CR 064005-KES, 2008 WL 2660969, at *4-5 (D.S.D. July 2, 2008). The producing party, a pro se litigant, disobeyed the order by removing the hard drives and having mirror images made for the requesting party. Id. at *4. The court determined that the requesting party was entitled to inspection and to make its own mirror images and that the requesting party was not required to accept the producing party's mirror images. Id.
(296.) 655 F. Supp. 2d 146 (D. Mass. 2009).
(297.) Dahl, 655 F. Supp. 2d at 149.
(298.) Id. at 149-50 (citations omitted).
(299.) Id. at 150. In an issue related to metadata but not to e-discovery specifically, several commentators have discussed whether an attorney has an ethical obligation to refrain from reviewing accidentally disclosed metadata, such as disclosure through email or email attachments with items like proposed contracts. See Sedona Principles, supra note 28, at 41; ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 06-422 (2006), available at http://www.abanet.org/abanet/common/login/ securedarea.cfm?areaType=member&role=abanetmo&url=/cpr/mo/06_442.pdf. The ABA's Committee on Ethics and Professional Responsibility has determined:
The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer's reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party. A lawyer who is concerned about the possibility of sending, producing, or providing to opposing counsel a document that contains or might contain metadata, or who wishes to take some action to reduce or remove the potentially harmful consequences of its dissemination, may be able to limit the likelihood of its transmission by "scrubbing" metadata from documents or by sending a different version of the document without the embedded information.
(300.) Dahl, 655 F. Supp. 2d at 149.
(301.) Id. at 148 (citing FED. R. CIV. P. 26(b)(2)(B)).
(302.) Sedona Principles, supra note 28, at 67.
(303.) 261 F.R.D. 127 (E.D. Mich. 2009).
(304.) Laethem, 261 F.R.D. at 145.
(305.) Id. at 146. A related issue involves the payment of e-discovery expenses at the close of litigation in cases in which the prevailing party is awarded costs. Several courts have excluded extensive e-discovery costs from these awards for various reasons. For example, in Little Rock Cardiology Clinic PA v. Baptist Health, the Eighth Circuit determined that the losing party was not required to pay discovery-related copying charges for paper documents and, thus, did not reach the issue of paying for e-discovery-related costs. 591 F.3d 591, 602 (8th Cir. 2009). The court reasoned that cases ordering payment of discovery costs were, at best, permissive. Id. (citations omitted). Similarly, in Jadari v. Shiba Investments, Inc., the District of South Dakota addressed a motion to recover prevailing-party costs and fees in an employment case. No. 06-5012-RHB, 2008 WL 5100812, at *3 (D.S.D. Dec. 3, 2008). The court refused to order payment of costs related to computer forensics incurred during e-discovery because the court had already denied a cost-shifting motion during discovery. Id. at *8.
(306.) FED. R. CIV. P. 45.
(307.) FED. R. CIV. P. 45(a)(1)(A)(iii).
(308.) FED. R. CIV. P. 45(a)(1)(C).
(309.) See Sedona Principles, supra note 28, at 43 (stating, "[T]here is no mandatory discussion, prior to discovery, of a discovery plan or the opportunity to meet and discuss preservation or other key topics. The intent of the Advisory Committee was that parties issuing and responding to subpoenas would avail themselves of such an opportunity informally, a best practice that should be followed in most cases").
(310.) Id. at 44. For further information on Rule 45 e-discovery practice, see The Sedona Conference, Commentary on Non-Party Production & Rule 45 Subpoenas (2008), available at http://www. thesedonaconference.org.
(311.) FED. R. CIV. P. 26(b)(5).
(312.) See Sedona Principles, supra note 28, at 23.
(315.) Id. at 24.
(317.) Id. at 56.
(318.) Sedona Principles, supra note 28, at 53.
(320.) Id. at. at 54. The Sedona Principles explain:
In a "quick peek" production, documents and electronically stored information are produced to the opposing party before being reviewed for privilege, confidentiality, or privacy. Such a production requires stringent guidelines and restrictions to prevent the waiver of confidentiality and privilege. Under a "quick peek" agreement, if the requesting party selects a document that appears to be privileged, the producing party can identify the document as privileged and withdraw it from production without having waived any privilege.
(321.) 531 F.3d 448 (6th Cir. 2008).
(322.) John B.,531 F.3d at 451.
(323.) Id. at 460.
(324.) 518 F.3d 562 (8th Cir. 2008).
(325.) Executive Air Taxi, 518 F.3d at 569.
(327.) FED. R. CIV. P. 26(b)(2)(B).
(329.) Sedona Principles, supra note 28, at 17.
(330.) Id. at 18. In addition to its Principles, generally, the Sedona Conference has published commentary on dealing with information that is not reasonably accessible under Rule 26(b)(2)(B). See The Sedona Conference, Commentary on. Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible (2008), available at http://www. thesedonaconference.org.
(331.) Rodriguez-Torres v. Gov't Dev. Bank of P.R., 265 F.R.D. 40, 44 (D.P.R. 2010).
(332.) Id. The court in the Best Buy case reached a similar conclusion, determining that the requesting parties could not get discovery of information that was not reasonably accessible because they had failed to show that the information sought was not otherwise available and, thus, had failed to show good cause. Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 247 F.R.D. 567, 571 (D. Minn. 2007).
(333.) 242 F.R.D. 139 (D.D.C. 2007).
(334.) Disability Rights, 242 F.R.D. at 148.
(335.) Id. at 147-48 (quoting FED. R. CIV. P. 26, advisory committee note (2006 amendments)).
(336.) Id. at 146, 148.
(337.) Nucor Corp. v. Bell, 251 F.R.D. 191, 194 (D.S.C. 2008) (quoting Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)).
(338.) Id. (quoting Silvestri, 271 F.3d at 590).
(339.) Id. (quoting Silvestri, 271 F.3d at 590).
(340.) Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 607 (S.D. Tex. 2010).
(341.) Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC., 685 F. Supp. 2d 456, 467 (S.D.N.Y. 2010).
(342.) Beard Research, Inc. v. Kates, 981 A.2d 1175, 1189 (Del. Ch. 2009) (citations omitted).
(343.) Sampson v. City of Cambridge, Md., 251 F.R.D. 172, 179 (D. Md. 2008) (quoting Thompson v. U.S. Dep't of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D. Md. 2003)).
(344.) Id. at 179-80 (citing FED. R. EVID. 401).
(345.) Id. at 180 (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995); Thompson, 219 F.R.D. at 101; Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 104 (D. Colo. 1996)).
(346.) Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008) (quoting Vodusek, 71 F.3d at 156).
(347.) See, e.g., Beard Research, 981 A.2d at 1193 (stating, "To obtain an adverse inference, however, a party must offer more than mere speculation and conjecture that a particular document existed"); Sampson, 251 F.R.D. at 183 (stating, "Thus, it would be sheer speculation to conclude that there were any emails which were lost or destroyed and which contained relevant information, let alone evidence favorable to plaintiff's case").
(348.) Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC., 685 F. Supp. 2d 456, 467 (S.D.N.Y. 2010) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 109 (2d Cir. 2002); Treppel v. Biovail, 249 F.R.D. 111, 121-22 (S.D.N.Y. 2008)).
(349.) See, e.g., Beard Research, 981 A.2d at 1189-90 (tailor to the degree of culpability); Nucor, 251 F.R.D. at 194 (harsher sanctions require higher degree of culpability).
(350.) See Pension Comm., 685 F. Supp. 2d at 469 (discussing spectrum of sanctions); Treppel, 249 F.R.D. at 124 (permitting a forensic inspection). Dismissal or default judgment has been routinely determined as the harshest or most extreme remedy available. See, e.g., Pension Comm., 685 F. Supp. 2d at 469-70; Beard Research, 981 A.2d at 1190 (citing Sundor Elec., Inc. v. E.J.T. Constr. Co., Inc., 337 A.2d 651, 652 (Del. 1975)); Sampson v. City of Cambridge, Md., 251 F.R.D. 172, 180 (D. Md. 2008) (citing Silvestri v. General Motors Corp., 271 F.3d 583, 593 (4th Cir. 2001)); Nucor, 251 F.R.D. at 201.
(351.) See, e.g., Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 447 (1st Cir. 1997) (stating, "Certainly bad faith is a proper and important consideration in deciding whether and how to sanction conduct resulting in the destruction of evidence. But bad faith is not essential. If such evidence is mishandled through carelessness, and the other side is prejudiced, we think that the district court is entitled to consider imposing sanctions, including exclusion of the evidence"); Residential Funding, 306 F.3d at 108 (stating, "The sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence"); Ford v. Potter, 354 Fed. Appx. 28, 33 (5th Cir. 2009) (stating, "A plaintiff must show that a defendant acted 'in bad faith' to establish that it is entitled to [an adverse inference based on spoliation of evidence]"); Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007) (stating, "A spoliation-of-evidence sanction requires 'a finding of intentional destruction indicating a desire to suppress the truth'") (quoting Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 2004)).
For the most part, each circuit seeks something slightly different with respect to the impact culpability has on sanctions. In some instances, circuits have wavered between standards, not truly settling on a definitive test. However, generally speaking, the circuits stand as follows. In the First Circuit, bad-faith destruction is a sufficient but not a necessary element and "carelessness" and "prejudice" are enough. Sacramona, 106 F.3d at 447; Driggin v. Am. Sec. Alarm Co., 141 F. Supp. 2d 113, 123 (D. Me. 2000). In the Second Circuit, cases are analyzed on a case-by-case basis, but knowing and negligent conduct is sanctionable. Residential Funding, 306 F.3d at 108. Similarly, several district courts within the Third Circuit have determined that negligence is a sufficient degree of culpability to warrant sanctions. Kounelis v. Sherrer, 529 F. Supp. 2d 503, 519 (D.N.J. 2008); Centimark Corp. v. Pegnato & Pegnato Roof Mgmt., Inc., No. 05-708, 2008 WL 1995305, at *10 (W.D. Pa. May 6, 2008); Travelers Prop. Cas. Co. of Am. v. Cooper Crouse-Hinds, LLC, No. 05-CV-6399, 2007 WL 2571450, at *7 n.35 (E.D. Pa. Aug. 31, 2007). Although it held previously that bad faith was required, the District Court of the District of Columbia, too, has recently determined that negligence is a sufficiently culpable state of mind. Smith v. Napolitano, 626 F. Supp. 2d 81, 101 (D.D.C. 2009); Bolger v. District of Columbia, 608 F. Supp. 2d 10, 31 (D.D.C. 2009); Mazloum v. D.C. Metro. Police Dep't, 530 F. Supp. 2d 282, 292-93 (D.D.C. 2008). But see McIntyre v. Peters, 460 F. Supp. 2d 125, 138 (D.D.C. 2006) (stating, "Plaintiff has not made, nor even attempted, such a showing of bad faith regarding the destruction [of evidence], and thus no adverse inference is mandated based on the spoliation doctrine").
The Fourth Circuit has taken a different approach by looking at "willfulness" rather than bad faith. In Buckley v. Mukasey, the court reasoned, "In our opinion, however, 'we rejected the argument that bad faith is an essential element of the spoliation rule.' Rather, we concluded that 'when a proponent's intentional but not necessarily bad faith conduct contributes to the loss or destruction of evidence, the trial court has discretion to pursue a wide range of responses both for the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct.'" 538 F.3d 306, 323 (4th Cir. 2008) (internal citations omitted) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)). The Buckley court cautioned that equating bad-faith conduct with intentional conduct was an error and that document destruction could be "intentional," "willful," or "deliberate" without being considered in "bad faith." /d.
On the other hand, the Fifth Circuit has required a showing of bad faith prior to imposing severe sanctions such as default judgment, the striking of pleadings, or an adverse jury instruction. Potter, 354 Fed. Appx. at 33; King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003). The Seventh Circuit requires a showing of intent and bad faith, while the Tenth Circuit requires a showing of intent or bad faith. Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008); Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1220 (10th Cir. 2009). The Eighth Circuit requires intent specifically "indicating a desire to suppress the truth." Greyhound Lines, 485 F.3d at 1035. The Eleventh Circuit and Court of Federal Claims require bad faith. Mann v. Taser Int'l., Inc., 588 F.3d 1291, 1310 (11th Cir. 2009); United States v. McCray, 345 Fed. Appx. 498, 501 (11th Cir. 2009); Slattery v. United States, 46 Fed. Cl. 402, 404-05 (2000). However, the Federal Circuit has declined to determine whether bad faith, negligence, or another standard is appropriate. Jandreau v. Nieholson, 492 F.3d 1372, 1375-76 (Fed. Cir. 2007).
Meanwhile, the Ninth Circuit has determined that bad faith is not required and that a showing of "simple notice of 'potential relevance to the litigation'" is sufficient. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). However, since the Ninth Circuit's decision in Glover v. BIC Corp., several of the district courts in that circuit have reached somewhat different standards, but none requires a showing of bad faith. See, e.g., Brosnan v. Tradeline Solutions, Inc., 681 F. Supp. 2d 1094, 1104 (N.D. Cal. 2010) (only "willfulness or fault" required, not bad faith); Durham v. County of Maui, No. 08-00342 JMS/LEK, 2010 WL 520699, at *3 (D. Haw. Feb. 10, 2010) (same); Peschel v. City of Missoula, 664 F. Supp. 2d 1137, 1141-42 (D. Mont. 2009) (same); Marceau v. Int'l Bhd. of Elec. Workers, 618 F. Supp. 2d 1127, 1174 (D. Ariz. 2009) (bad faith not required).
The South Dakota Supreme Court has also evaluated the level of culpability necessary for an adverse jury instruction, although not in the e-discovery context. In 2000, the court decided Wuest v. McKennan Hospital, determining that the jury could presume destroyed evidence was favorable to the requesting party if the destruction was the result of negligence or bad faith. 2000 SD 151, [paragraph] 12, 619 N.W.2d at 686-87. However, in 2003, the court adopted what is also the Eighth Circuit's approach, determining that an adverse jury instruction must be based on bad faith through a showing of intent with a desire to suppress the truth. State v. Engesser, 2003 SD 47, [paragraph][paragraph] 44-47, 661 N.W.2d 739, 753-55.
(352.) Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 615 (S.D. Tex. 2010) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991)). In discussing the court's inherent sanctioning powers, the Chambers Court stated,
A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees[.] Furthermore, when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power. But if in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power.
Chambers, 501 U.S. at 50 (internal citations omitted).
(353.) 373 F.3d 896 (8th Cir. 2004).
(354.) Morris, 373 F.3d 896, 900-01 (8th Cir. 2004) (quoting Felice v. Long Island R.R. Co., 426 F.2d 192, 195 n.2 (2d Cir. 1970) (Friendly, J.)).
(355.) Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC., 685 F. Supp. 2d 456, 496-97 (S.D.N.Y. 2010).
(356.) Nucor Corp. v. Bell, 251 F.R.D. 191, 203-04 (D.S.C. 2008). The Nucor court also made an interesting observation about the allocation of fact-finding roles in cases involving adverse jury instructions. The court explained:
There is inconsistency in how courts deal with the division of fact-finding labor in spoliation cases. The court makes the findings of fact necessary to reach a conclusion on the spoliation issue. That practice follows the usual rule that the court, rather than a jury, is responsible for finding facts on a motion for sanctions. Indeed, a district court is granted broad discretion to impose appropriate sanctions, and the abuse of discretion standard accounts for the judge's role as a fact-finder. Nonetheless, when imposing an adverse inference charge as a sanction for spoliation, district courts permit the jurors to re-assess the evidence and determine whether, in their judgment, spoliation has occurred at all.
Id. at 202-03 (citations omitted). The court continued:
While this court is content to allow the jury to decide whether spoliation occurred for itself, the allocation of labor in Zubulake V, Vodusek, and other cases makes little sense when viewed in light of all the sanctions available to remedy spoliation of evidence. If a district court finds that a party spoliated evidence and sanctions that conduct by giving an adverse inference charge, the spoliating party gets an opportunity to re-argue the spoliation issue before the jury. However, if a district court makes the same findings and chooses to impose any other sanction, including the harsher sanctions of default judgment or dismissal, the spoliating party is not afforded the same opportunity. In other words, the judge is the final authority to make the relevant findings of fact (subject, of course, to appellate review) in those cases. Because good authority trends toward such an outcome, notably the Zubulake V and Vodusek cases, this court will permit the parties to present all spoliation issues anew before the jury. The inconsistency is noted simply because courts and parties should be mindful of the consequences the different sanctions may have on who ultimately gets to decide the factual disputes.
Id. at 203.
(357.) Sedona Principles, supra note 28, at 30.
(358.) Id. at 12. The Sedona Conference has published several other guidelines that are pertinent to advising clients proactively about document-retention policies. See, e.g., The Sedona Conference, The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age (Second Edition) (2007), available at http://www.thesedonaconference.org; The Sedona Conference, Commentary on Email Management: Guidelines for the Selection of Retention Policy, 8 SEDONA CONF. J. 239 (2007), available at http://www.thesedonaconference.org. However, counsel should be aware that the client's document-retention policy is a proper "subject for discovery," if litigation ensues. Newman v. Borders, Inc., 257 F.R.D. 1, 3 (D.D.C. 2009) (citing Huthnance v. District of Columbia, 255 F.R.D. 285, 287 (D.D.C. 2008)).
(359.) Sedona Principles, supra note 28, at 14 (citing Sarbanes Oxley Act of 2002, 116 Stat. 745 (2002)).
RACHEL K. ALEXANDER, Professor Rachel K. Alexander is Assistant Professor of Law and Director of Legal Writing at the University of South Dakota School of Law. Before joining the faculty at USD Law, she practiced employment and labor law, specializing in litigation. The author wishes to thank the H. Lauren Lewis Faculty Research Foundation of the University of South Dakota Foundation for the grant that supported this research.
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|Author:||Alexander, Rachel K.|
|Publication:||South Dakota Law Review|
|Date:||Mar 22, 2011|
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