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E-discovery: what is it, where is it, and (if it doesn't help our case), why do we care?
The California State Bar has opined that an attorney may violate ethical duties of competence by failing to understand and perform e-discovery.1 The Committee Opinion set out a list of nine e-discovery tasks that "attorneys handling e-discovery should be able to perform (either by themselves or in association with competent counsel or expert consultants)." They include:
In 2009, the California legislature passed the Electronic Discovery Act to address specific issues that frequently arise in e-discovery. The Act is modeled in part on federal rules governing e-discovery, which took effect December 1, 2006.2 The electronic information sought by e-discovery is called "ESI."ESI is an acronym for "electronically stored information," defined as "information that is stored in an electronic medium."3 "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.4
The typical amorphous request for "any and all documents relating to" pertains not just to medical records, receipts, invoices, and paper documents. It also means emails and instant messaging, social media, CDs and DVDs, cell phones and tablets, electronic documents, hard copied documents, shared resources, databases, audio and video data, thumb drives, and foreign language materials.
A party to a lawsuit, or anyone who anticipates being a party, has a duty not to destroy evidence.5 There is a safe harbor provision that states that absent "exceptional circumstances," a party cannot be sanctioned for destruction or altering of ESI in the routine, good faith operation of an organization's electronic information system.6 An attorney should notify the client of the duty to preserve potential evidence, work with client's IT personnel to ensure effective hold, confer with expert if necessary, and use document preservation memorandum and monitor compliance.
To preserve evidence in support of his case, counsel should notify opposing party of existence of current or imminent litigation, state what type of evidence will be relevant to the subject matter of the litigation, and demand that all potentially-relevant ESI be preserved. The preservation letter helps preserve evidence in the case and helps keep the opposing party from successfully asserting the safe harbor provision.
As in the federal rules, the revised provisions of the Code of Civil Procedure provides that a requesting party may specify the format in which it wants ESI produced.7 If a format is specified, the responding party may object to the specified form, and must state in its response the form in which it intends to produce the ESI.8
If no format is specified in the request, the responding party may produce ESI in the format "in which it is ordinarily maintained," or one that is "reasonably usable," and must state in the response the format it intends to provide.9 Thus, a party may be required to convert its data to a format that other parties are able to use. To meet this obligation, parties may be required to provide information about the software necessary to access the data or other reasonable technical support. In the case of "data compilations," the new rules state that, if necessary, the responding party must translate the information into reasonably usable form at the "reasonable expense" of the requesting party.10
A party need not produce the same ESI in more than one format.11
Limitations on the Discovery of ESI
The amended rules permit a court to limit the frequency or extent of discovery of ESI—whether reasonably accessible or otherwise—if the court determines that any of the following conditions exist:
Meet and Confer
Also amended in 2009 is the duty to meet and confer, in person or by telephone, no later than 30 calendar days before the initial CMC to consider, among other issues:
Issues relating to the preservation of discoverable electronically stored information;
"A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and a willingness to compromise. Think Eddie Haskell singing the Beaver's praises to June Cleaver, only moments after giving him the business in private."14 But to allow a party to seek shelter from a fallback position that was "previously tendered in good faith would make a mockery of both parties' obligation to meet and confer in good faith from the start. The time to tap flexibility and creativity is during meet and confer, not after."15
"Forensic evidence" is, literally, "evidence that can be used in a court based on science."16 Forensic evidence includes computer evidence, accident scene reconstruction, fingerprint examination, document screening, biology screening, toxicology and blood alcohol testing, controlled substances testing, and everything in between.
In the discovery context, the need for a forensic analysis arises from smart phones, computers and tablets, social media, activity trackers, flash drives, external hard drives, and the cloud. More than what is easily identifiable, there is also deleted content, blocked content, and "scrubbed" metadata.
Metadata is like an electronic fingerprint, containing the name of the computer user who was logged into the computer when the document was created, when it was first created, the date it was last edited, the number of revisions, and how many times the document was printed. It may also be possible to see each change made to the document and the user who made the change. However, this information can only be seen if the document is produced in the electronic form it was created.
There have also been extensive changes to the Federal Rules of Civil Procedure, including Rule 26(B)(1), defining the scope of discovery:
(1) Unless otherwise limited by court order...: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
If one's practice is limited to California, why should he care about the Federal Rules of Civil Procedure? Litigation is slow, and California trial courts do not publish their decisions, leaving very little case law on these rules. However, the federal rules have been the subject of published decisions that give guidance to the court and litigants. Where the California rules were modeled closely after the federal rules, California courts and litigants often analogize to the federal rules to determine how California's Electronic Discovery Act should be applied.
Local Voices in e-Discovery
There are two judges in San Jose who are significant voices in e-discovery. The first is Santa Clara Superior Court Judge Socrates Manoukian, who has issued substantial tentative orders on e-discovery issues in state court cases. The second is federal Magistrate Judge Paul Grewal, who continues to rise in e-discovery jurisprudence. Judge Manoukian's detailed e-discovery tentative orders seek to give guidance to attorneys, as opposed to writing one paragraph granting or denying a motion.
Some published cases on e-discovery:
1 Formal Opinion No. 2015-193 of the Standing Committee On Professional Responsibility and Conduct of the California State Bar "Committee Opinion."
2 See F.R.C.P. Rules 16 (b)(3)(B)(iii), (iv), 26(b)(2)(B), (b)(5), (f)(3)(c), 34(b)(1)(C), (b)(2)(D), (b)(2)(E), 37(e).
3 C.C.P. 2016.020(e).
4 C.C.P. § 2016.020(d).
5 Cedars-Sinai Med. Ctr. v. Sup. Ct. (1998) 18 Cal.4th 1.
6 C.C.P. § 2031.060(i)(1).
7 C.C.P. § 2031.030(a)(2).
8 C.C.P. § 2031.280(c).
9 C.C.P. § 2031.280(c), (d)(1).
10 C.C.P. § 2031.280(e).
11 C.C.P. § 2031.280(d)(2).
12 C.C.P. §§ 2031.060(f); 2031.310(g).
13 California Rule of Court Rule 3.724; See also FRCP 26(f).
14 Boston Sci. Corp. v. Lee, 2014 U.S. Dist. LEXIS 107584, 1 (N.D. Cal. Aug. 4, 2014).
15 Id. at *20-22 (emphasis added).
16 Black's Law Dictionary, "Forensic Evidence" (2d ed. Online 2016).