QUARTERLY FDCC. THE IMPACT OF ELECTRONIC DATA UPON AN ATTORNEY S CLIENT Terry L. Hill and Jennifer S. Johnson

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1 QUARTERLY FDCC THE IMPACT OF ELECTRONIC DATA UPON AN ATTORNEY S CLIENT Terry L. Hill and Jennifer S. Johnson JURY SELECTION LANDMINES SEXUAL HARASSMENT ALLEGATIONS, CORPORATE JUDGMENTS AND PUNITIVE DAMAGES Kimberly D. Baker LOSS OF PRIVILEGE: THE NEW DISCOVERABILITY OF REINSURANCE INFORMATION Mitchell A. Orpett ANTICIPATORY WRONGFUL DEATH DAMAGES: A VISIT TO ALICE IN WONDERLAND Gregory P. Forney DO STATE OSHA REGULATIONS APPLY TO HOMEOWNERS? Michael J. Brady and Elisa R. Nadeau THE MISSING INSURED AND THE LIFE INSURANCE DEATH CLAIM C. Edgar Sentell VOL. 54, NO. 2 WINTER, 2004

2 FEDERATION OF DEFENSE AND CORPORATE COUNSEL PRESIDENT JACK T. RILEY, JR. 55 East Monroe Street Suite 4100 Chicago, IL (312) EXECUTIVE VICE PRESIDENT AND PRESIDENT-ELECT JEAN M. LAWLER Chase Plaza, 9th Floor 801 South Grand Avenue Los Angeles, CA (213) SECRETARY-TREASURER LEWIS F. COLLINS, JR. Bayport Plaza, Suite Courtney Campbell Causeway Tampa, FL (813) BOARD CHAIR ROBERT V. DEWEY, JR. Bank One Building, Suite S.W. Adams Street Peoria, IL (309) BOARD OF DIRECTORS STEVEN L. BARNEY 303 Howard Street Petoskey, MI ALAN S. BROWN 201 North Illinois Street, Suite 1000 P.O. Box Indianapolis, IN DAN D. KOHANE 1300 Liberty Building Buffalo, NY SUSAN M. POPIK 650 California Street, 19th Floor San Francisco, CA VICE PRESIDENTS F. THOMAS CORDELL 201 North 4th Street P.O. Box 533 Chickasha, OK COLIN V. CROLY Beaufort House 15 St. Botolph Street London, England EC3A 7NJ THOMAS A. DILLON 155 E. Broad Street, 12th Floor Columbus, OH STEPHEN E. GOLDMAN 280 Trumbull Street Hartford, CT MICHAEL T. LUCEY 275 Battery Street, Suite 2000 San Francisco, CA JANET L. BROWN P.O. Box Southhall Lane, Suite 375 Orlando, FL RICHARD E. HALL 702 W. Idaho Street, Suite 700 Boise, ID LORI E. IWAN 29 N. Wacker Drive, Suite 500 Chicago, IL WAYNE B. MASON 1717 Main Street, Suite 5400 Dallas, TX MICHAEL IRA NEIL nd Avenue, Suite 2500 San Diego, CA CARY PHILLIPS Summit Street Kansas City, MO SARAH J. TIMBERLAKE 105 N. Hudson, 10th Floor P.O. Box 1937 Oklahoma City, OK JAMES A. VARNER Fourth and Main Streets P.O. Drawer 2040 Clarksburg, WV FDCC EXECUTIVE DIRECTOR MARTHA J. (MARTY) STREEPER A North 56th Street Tampa, FL (813) (813) FAX PUBLICATIONS COMMITTEE CHAIR SUSAN M. POPIK 650 California Street, 19th Floor San Francisco, CA (415) EDITOR-FLYER JOHN S. REA 2639 Wooster Road Cleveland, OH (440) EDITOR-BROCHURE JAMES A. GALLAGHER, JR Franklin Ave., Suite 400 Garden City, NY (516) CLE COORDINATOR FRANCIE BERG nd Avenue South Minneapolis, MN (612) (612) FAX EDITOR-WEBSITE DAN D. KOHANE 1300 Liberty Building Buffalo, NY (716) EDITOR-ROSTER STEVEN D. JOHNSON 1700 Two Logan Square 18th & Arch Streets Philadelphia, PA (215) FDCC QUARTERLY EDITORIAL OFFICE Marquette University Law School P.O. Box 1881 Milwaukee, WI (414) (414) FAX Editor Prof. John J. Kircher Associate Editor Prof. Christine M. Wiseman Student Editors Deborah J. Phillips John J. Schulze, Jr. Nadya E. Shewczyk LIAISON-QUARTERLY DIANNE K. DAILEY 300 Pioneer Tower 888 S.W. Fifth Avenue Portland, OR (503)

3 FDCC QUARTERLY WINTER, 2004 VOLUME 54, NUMBER 2 CONTENTS THE IMPACT OF ELECTRONIC DATA UPON AN ATTORNEY S CLIENT Terry L. Hill and Jennifer S. Johnson JURY SELECTION LANDMINES SEXUAL HARASSMENT ALLEGATIONS, CORPORATE JUDGMENTS AND PUNITIVE DAMAGES Kimberly D. Baker LOSS OF PRIVILEGE: THE NEW DISCOVERABILITY OF REINSURANCE INFORMATION Mitchell A. Orpett ANTICIPATORY WRONGFUL DEATH DAMAGES: A VISIT TO ALICE IN WONDERLAND Gregory P. Forney DO STATE OSHA REGULATIONS APPLY TO HOMEOWNERS? Michael J. Brady and Elisa R. Nadeau THE MISSING INSURED AND THE LIFE INSURANCE DEATH CLAIM C. Edgar Sentell Cite as: 54 FED N DEF. & CORP. COUNS.Q. (2004). The Federation of Defense & Corporate Counsel Quarterly (USPS ) (ISBN ) is published quarterly for $60.00 per year by the Federation of Defense & Corporate Counsel, Inc., A North 56th Street, Tampa, FL Periodicals postage paid at Tampa, Florida and additional mailing offices. POSTMASTER: Send address changes to the Executive Director, A North 56th Street, Tampa, FL No article may be reproduced without the express written permission of both FDDC and the author. Copyright, 2004, by the Federation of Defense & Corporate Counsel, Inc.

4 FDCC 2004 NNUAL MEETING ASunday, July 25 - Sunday, August 1 Hyatt Regency Chesapeake Bay Cambridge, Maryland

5 IMPACT OF ELECTRONIC DATA The Impact of Electronic Data upon an Attorney s Client Terry L. Hill Jennifer S. Johnson I. INTRODUCTION Technological advancements within the past decade have affected virtually every aspect of modern life. Many of these effects are positive. People have greater knowledge, and they can access the sources of that knowledge more quickly. In addition, businesses function more efficiently, thereby increasing productivity and creativity. The processes and procedures of today s institutions are more streamlined and more easily manipulated by those who need them. Communication, both on an individual and a global level, has become sophisticated and instantaneous. While the accolades could continue, fairness demands an admission that today s high-tech gadgets and computerized operations also create consequences that are not so desirable. One of the problem areas associated with the intense influx of electronic tools is the current struggle within the legal profession to adapt its practices to this new Technology Age. While the advancements created by computers are beneficial to attorneys and their clients in many ways, they also create burdens for counselors who are professionally responsible for the impact they have on legal relationships and, specifically, litigation. Those burdens can include: 1. the multi-level difficulty of drafting working policies for clients in order to safeguard against the uncertainty of potential electronic discovery; 2. the immense effort involved in responding to discovery requests for electronic information so as to protect all privileges and to zealously represent the client; 3. the intrusiveness of discovery requests that can entail vast searches for data hidden deep within a client s electronic systems; and Submitted by the authors on behalf of the FDCC Management, Economics & Technology of Practice Section. 95

6 FDCC QUARTERLY/WINTER 2004 Terry L. Hill is a partner in the law firm of Manier & Herod, Nashville, Tennessee. He is a past president of the Tennessee Defense Lawyers Association and was recently selected for inclusion in BEST LAWYERS IN AMERICA. Mr. Hill has served as Chairman of the FDCC Workers Compensation Section, and presently chairs its Management & Economics of Trial Practice Section. He is Editor of TENNESSEE WORKERS COMPENSA- TION LAW A PRACTICAL GUIDE, now in its second printing. 4. the financial cost of complying with electronic discovery requirements, not only in hours spent reviewing and rebuilding data, but also in a client s business interruption. These burdens have compromised the practice environment for litigation attorneys and overwhelmed them with electronic discovery demands. Thus, this article will examine some of the most troublesome issues confronting the legal profession with regard to electronic document production: 1. inadvertent waiver of privilege; 2. electronic document management; 3. preservation of electronic information; and 4. the cost allocation of electronic document production. In order to discuss these issues knowledgeably, however, it is necessary first to establish the currently existing framework of the legal duty to produce electronic documents and the potential scope of that duty. II. DUTY TO PRODUCE ELECTRONIC INFORMATION Federal Rule of Civil Procedure 26 was amended in 1993 to create a mandatory disclosure requirement. Although the amended rule initially was adopted by most federal district courts, a provision was adopted in December 2000 that compelled all federal district courts to comply with the mandatory disclosure rule. 1 This amendment requires attorneys to pro- 1 FED. R. CIV. P. 26(a)(1). 96

7 IMPACT OF ELECTRONIC DATA Jennifer S. Johnson is a former associate with the law firm of Manier & Herod, Nashville, Tennessee. Currently, she is a professor in the Honors College of Freed-Hardeman University, Henderson, Tennessee. duce certain materials relevant to issues in the pending litigation without a specific discovery request. Instead of waiting for a list of limited items from opposing counsel, attorneys now must conduct a broad, general review of all the information held by their clients in order to locate those items that are relevant to the dispute. Significantly, that review must include electronic evidence as well as paper documents. Federal Rule 26(a)(1) states in pertinent part: (1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E) or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:.... (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment[.] 2 The potential penalties for failing to comply with this disclosure requirement are substantial. Not only will a party forfeit the right to use the evidence that the party failed to disclose, 3 the party also may suffer monetary sanctions 4 or even the loss of a judgment. 5 2 FED. R. CIV. P. 26(a)(1)(B). 3 Brand v. Mazda Motor of Am., Inc., No SAC, 1996 WL (D. Kan. Nov 18, 1996). 4 Taydus v. Cisneros, 902 F. Supp. 288 (D. Mass. 1995). 5 MMAR Group, Inc. v. Dow Jones & Co., 187 F.R.D. 282 (S.D. Tex. 1999). 97

8 FDCC QUARTERLY/WINTER 2004 While most attorneys are familiar with the mandatory disclosure requirements in some form, a smaller number have made the connection between the rule and the computer systems of their clients. Attorneys are accustomed to examining paper documents during discovery; yet almost every paper document today derives from an electronic format. Electronic documents, whether word processed items or databases, or data stored within the computer system itself, consist of any information that is communicated and stored electronically. The Civil Rules Advisory Committee was aware of this expanded document concept as early as 1970, when it amended Federal Rule 34 to include data compilations in the list of items that might be requested by litigating parties. 6 Since that amendment, courts consistently have interpreted the term document to include information that is stored electronically, and no case since 1970 has interpreted the term document to exclude from discovery any form of electronic data. One court went so far as to say that it is black letter law that computerized data is discoverable if relevant. 7 This development creates a new twist for attorneys prepared to review and produce client materials pursuant to Rule 26(a)(1)(B): filing cabinet drawers are no longer the place to begin. Today, the vast majority of business records including contracts, financial data, and correspondence are stored within computer systems. Many attorneys, however, still consider themselves technically illiterate and do not understand how or where to look for this information. Some are frustrated by the sheer volume of documents that may exist, failing to produce anything not evident after a cursory review. Nevertheless, courts are clear that the duty imposed by Rule 26 includes the production of materials that attorneys should have known existed. 8 It is likely that this frustration will intensify as attorneys become aware of the particularly incriminating nature of electronic evidence. The lack of hard evidence in paper form can lull some clients into a false sense of security with regard to the existence of electronic data, and messages sometimes can be downright dangerous for litigation strategy. The unique nature of suggests a potential litigation landmine for many reasons: (1) the sheer quantity of messages produced by clients increases the chance that one of them will contain material relevant to a disputed legal matter; (2) the content of messages generally is more casual and more likely to contain information unavailable from other sources, and (3) an message is actually very difficult to destroy. In addition, even the general public is aware of the smoking guns discovered in messages in high-profile cases such as Iran-Contra, the Salt Lake City Olympic bid scandal, the Microsoft antitrust case, the impeachment of President Clinton, and the collapse of Enron Corporation. Nor is it good enough simply to review and produce the paper copies provided by one s client. Recent court decisions have affirmed that attorneys not only have a duty to thor- 6 FED. R. CIV. P. 34(a) advisory committee s note Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL , at *2 (S.D.N.Y. Nov. 3, 1995). 8 Lintz v. Am. Gen. Fin., Inc., No. CIV.A JWL, 1999 WL , at *1 (D. Kan. Aug. 2, 1999). 98

9 IMPACT OF ELECTRONIC DATA oughly investigate and disclose potentially relevant documents, 9 they also must disclose whether or not those documents are available in electronic form. 10 Failures regarding the adequate production of electronic information can result in discovery sanctions. 11 Regardless of the concerns expressed by the legal community, the duty to produce relevant information, which very probably exists in electronic form, is clear. III. SCOPE OF DISCOVERY OF ELECTRONIC INFORMATION Rules 26 to 37 of the Federal Rules of Civil Procedure govern discovery procedures in federal civil actions. In theory, they enable parties to obtain all the information necessary to prepare for trial and to resolve their legal disputes. These rules were uniquely formulated to allow for broad searches in order to gain the fullest possible knowledge of the issues and facts before trial. 12 For example, Rule 34(a) allows any party to serve on any other party a request: to produce and permit the party making the request, or someone acting on the requestor s behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phone records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served[.] 13 The Notes to the 1970 Amendment to Rule 34 explain in part: The inclusive description of documents is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent s devices, respondent may be required to use [its] 9 See GTFM, Inc. v. Wal-Mart Stores, Inc., No. 98 Civ (RPP), 2000 U.S. Dist. LEXIS (S.D.N.Y. Nov. 8, 2000). 10 In re Bristol-Myers Squibb Sec. Litig., 205 F.R.D. 437, 441 (D.N.J. 2002). 11 Residential Funding Corp. v. DeGeorge Fin Corp., 306 F.3d 99 (2d Cir. 2002); Sheppard v. River Valley Fitness One, L.P., 203 F.R.D. 56 (D.N.H. 2001). 12 Hickman v. Taylor, 329 U.S. 495, 501 (1947). 13 FED. R. CIV. P. 34(a). 99

10 FDCC QUARTERLY/WINTER 2004 devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data.... Similarly, if the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of [its] records, confidentiality of nondiscoverable matters, and costs. 14 Rule 34(b) supplies the procedure for the discovery of documents: The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. Without leave of court or written stipulation, a request may not be served before the time specified in Rule 26(d). The party upon whom the request is served shall serve a written response within 30 days after the service of the request. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties, subject to Rule 29. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for the objection shall be stated. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. 15 In combination, Rule 26(b)(1) defines the general, broad scope of discoverable information: Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible 14 FED. R. CIV. P. 34(a) advisory committee s note FED. R. CIV. P. 34(b). 100

11 IMPACT OF ELECTRONIC DATA at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii). 16 Although these rules initially allow the parties to cast enormous nets in order to fish for data, it must be noted that even these broad parameters demand that the information sought be relevant to the issues involved in the litigation. Therefore, relevance should be considered the first, albeit most overlooked, limitation on the scope of electronic discovery. As noted above, Rule 34 governs the discovery of electronic information in the same way that it governs any other kind of information, and it allows broad access to relevant items. However, the rules also recognize that there are additional limits on how far discovery should reach. For example, matters protected by the attorney-client privilege and the work product doctrine are excluded from the scope of discovery by Rules 26(b)(1) and 26(d). In addition, Rule 26(b)(2) includes a proportionality limitation that permits the court to intervene when the burden or expense of the proposed discovery outweighs its likely benefit. 17 This judicial power exists whether or not a party has applied for a protective order or filed a motion to compel, allowing a judge to establish specific discovery procedures or set specific limitations before a potential problem becomes a nightmare. Once electronic information is requested under Rule 34, the responding party faces two threshold questions that could limit or completely preclude production of the requested items: (1) is the information discoverable under Rule 26(b)(2), and (2) is the information privileged? While an inquiry about whether certain electronic documents contain privileged information is easily navigated by most legal professionals (though such an inquiry may require enormous amounts of time, effort, and expense), a Rule 26(b)(2) inquiry demands more attention in the context of electronic media. Rule 26(b)(2) provides in relevant part: The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties resources, the importance of the 16 FED. R. CIV. P. 26(b)(1). 17 FED. R. CIV. P. 26(b)(2). 101

12 FDCC QUARTERLY/WINTER 2004 issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c). 18 The proportionality test of Rule 26(b)(2)(iii) is particularly applicable to requests for the production of electronic information simply because the nature of electronic information can range from words typed onto a computer screen to coded data stored on magnetic tapes that can be retrieved only through a complicated and expensive forensic process. When discovery was concerned primarily with paper documents, attorneys had to search through central filing devices, storage boxes, and even people s desks. With electronic documents, however, the number of places to look has increased exponentially. This increase is necessitated by the variety of forms that electronic data can assume. In a very basic sense, electronic data can include any of the following: 1. active data, 2. metadata or hidden data, 3. databases and spreadsheets, 4. system data, 5. deleted data, 6. ghost or residual data, or 7. legacy data. Active data is information created intentionally and with an understanding that it is easily retrievable and available in the ordinary course of business. 19 Such data includes word processing documents and saved messages. Metadata is information embedded in an electronic file about that file, such as the date of creation, author, editing history, and source. This information very seldom appears on a computer screen or in a printed version of the document. Instead, it is often created automatically by the software the author is using, without the author s knowledge or intent. Databases and spreadsheets are collections of information that have no structure or meaning without the metadata. They are the structure behind what may be called a nondocument document, or a document that is never evidenced in a permanent form. These 18 FED. R. CIV. P. 26(b)(2). 19 Kenneth J. Withers, Electronic Discovery, National Workshop for United States Magistrate Judges, June 12, 2002 (slides and text) at slide 39, available at (last visited March 4, 2004). 102

13 IMPACT OF ELECTRONIC DATA items are not really documents at all but electronic processes, most frequently used in the ordinary course of business. For example, a banker might make a loan decision after accessing a number of databases containing information such as an applicant s credit history, tax records, insurance claims, and police reports, to which the banker then applies a risk assessment program in order to calculate the applicant s risk. The banker s decision will be based on a large analysis that is never reduced to one computer file or printed on paper. Another example involves a transportation ticket that is purchased electronically. The traveler s purchase, travel information, payment information, etc., are recorded in a database that exists somewhere, but the collected data entered by the traveler will disappear when the transaction is completed. A request for the traveler s e-ticket essentially is a request for a business process that cannot be reduced to a simple document. System data is information generated by the computer system itself about a user s activity on the computer or network. 20 This information is created without the user s knowledge. It can include records detailing when the user logged on or off, which software applications or passwords were used, which web sites were visited, and which documents were printed or faxed. Deleted data is a misnomer for electronic information that has been renamed and marked as physical space on a hard drive that can be overwritten by the computer later, if the physical space is needed. The data itself is still there; changing its name does not erase such data from the hard drive. However, it can be difficult and expensive to retrieve. Ghost or residual data is random data chosen by a computer to consume leftover space in the sectors of a hard drive. 21 This data can be anything that has ever been created on a computer system, including information that its author never intended to save. Finally, legacy data is information that has been saved, although it was created on an obsolete computer system using obsolete operating and application software. 22 Accessing this information would require incredible effort and cost. In addition to these categories, most businesses store all of their computer information on backup tapes as a security mechanism. The tapes are generally recycled on a regular basis so that existing records are replaced with new records. These tapes essentially take a photograph of every piece of data existing within a computer system at a particular moment, potentially allowing any piece of that data to be retrieved in the event of a disaster involving the system itself. Retrieval, however, requires that the backup tapes be restored to a workable system and then converted into a format that will allow individual 20 Kenneth J. Withers, Electronic Discovery: What You Need to Know, Assn. of the Bar of New York City, May 29, 2003 (slides and text) at slide 22, available at (last visited March 4, 2004). 21 Id., (slides and text) at slide 25, available at (last visited March 4, 2004). 22 Kenneth J. Withers, Computer-Based Discovery in Federal Civil Litigation, 2000 FED. CTS. L. REV. 2, II. F. 2 (2000). 103

14 FDCC QUARTERLY/WINTER 2004 files to be organized, searched, and read. This process is difficult, expensive, and lengthy. Yet all of the data described above can be included in a request for production of electronic documents. The challenge presented by Rule 26(b)(2) requires the parties to determine when the potential benefit of a request is outweighed by the burden of data production. It is conceivable, of course, that some scenario exists in which any of the information above could be considered important enough to the litigation to make the effort of production worthwhile. In a majority of the cases, however, the reasonable limitations invoked by Rule 26(b)(2) will curtail unreasonable requests. It should also be noted that the list generated above enumerates types of electronic data in an order that ranges from easy to produce to insurmountably burdensome. Therefore, as the list progresses, so does the difficulty in surviving the Rule 26(b)(2) proportionality test. For example, with regard to many discovery requests for deleted s, it certainly can be argued that the scope of requested information is too expansive. In a way, this situation is analogous to a request for paper correspondence that was received, read, wadded into a ball, and thrown into the garbage several weeks prior to any discovery request. The idea that such a document could be discovered by a litigation opponent and appear as evidence in a civil case is laughable, but because it is actually possible and even foreseeable with regard to an message, no one should be amused. Because of the uncertainty involved in whether or not a particular electronic discovery request will be enforced by a court of law, some have argued that the appropriate scope of electronic discovery should be defined by a legal rule. Texas has attempted to do just that by adopting Rule of its Rules of Civil Procedure. This rule reads as follows: To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot through reasonable efforts retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information. 23 No Texas court has yet construed which electronic data categories are reasonably available... in [the] ordinary course of business, 24 but counsel might presume that the restora- 23 TEX. R. CIV. P Id. 104

15 IMPACT OF ELECTRONIC DATA tion of backup tapes and deleted data would be excluded from such reasonable efforts. At any rate, the Texas rule clearly intends to restrict the scope of electronic discovery on the basis of accessibility and cost. Some courts have used the language of Rule 26(b)(2) as the basis for ruling that parties need not produce archived or deleted materials. 25 In response, the Advisory Committee amended Rule 26(b)(1) in 2000 by adding a final sentence: All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii). 26 The Advisory Committee Notes explain this addition: [A] sentence has been added calling attention to the limitations of subdivision (b)(2)(i), (ii), and (iii). These limitations apply to discovery that is otherwise within the scope of subdivision (b)(1). The Committee has been told repeatedly that courts have not implemented these limitations with the vigor that was contemplated. This otherwise redundant cross-reference has been added to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery. 27 The limitations of Rule 26(b)(2) on the scope of discovery have been used effectively by courts to specifically tailor or deny electronic discovery requests. 28 Distinct from the Rule 26(b)(2) analysis, the nature of the electronic information requested in some situations may be such that its provision would divulge important proprietary assets a matter both detrimental to the respondent and unauthorized by Rule 34. For example, a request might be made for all documents relating to the time and location of certain sales transactions entered by a party. While the actual information regarding the time and location of those sales may be discoverable, the respondent might choose to keep that information stored in a computerized data base that also includes customer data. Not only is the respondent faced with a request that could expose valuable trade secrets, the respondent also is being compelled to disclose to a potential competitor its method for compiling customer data. In this setting, the database itself could represent a trade secret held by the respondent. As a result of this Rule 34 request, which asks for electronic information beyond the proper scope of discovery, the respondent must seek the protection of Rule 26(c). 25 In re Gen. Instrument Corp. Sec. Litig., No. 96 C 1129, 1999 WL , at *6 (N.D. Ill. Nov. 18, 1999). 26 FED. R. CIV. P. 26(b)(1). 27 FED. R. CIV. P. 26(b)(1) advisory committee s note Byers v. Ill. State Police, 53 Fed. R. Serv. 3d 740 (N.D. Ill. 2002); Hayes v. Compass Group USA, Inc., 202 F.R.D. 363 (D. Conn. 2001); McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001); Alexander v. F.B.I., 188 F.R.D. 111 (D.D.C. 1998); Ex Parte Wal-Mart, Inc., 809 So. 2d 818 (Ala. 2001). 105

16 FDCC QUARTERLY/WINTER 2004 IV. INADVERTENT WAIVER OF PRIVILEGE Within the context of a request for the production of electronic information, the attorney faces another pitfall connected to certain documents. This pitfall concerns the inadvertent waiver of privilege. It can occur as a mistake in the process of document production or as a mistake in the electronic distribution of information. A. Waiver by Inadvertent Production Electronic data is protected by the same legal privileges that apply to the discovery of paper evidence, including the attorney-client privilege and the work product doctrine. 29 These and other traditional privileges were created to protect certain special relationships and to encourage greater communication within those relationships. 30 While attorneys have an ethical duty to maintain client confidentiality, the attorneyclient privilege itself is held by the client. This privilege allows the client to protect completely the communications that exist between the client and the client s attorney. The protection of this privilege extends to documents that contain attorney-client communications, as well as those documents prepared for the purpose of seeking an attorney s advice. The privilege, however, is deemed to have been waived if the confidential communication is disclosed or somehow revealed to a third party, which can be done intentionally or inadvertently. 31 Once the privilege has been waived, it cannot later be invoked by the attorney. 1. Scope of the Waiver Some case law holds that a producing party can waive his or her right to assert the attorney-client privilege if a document is produced by mistake during discovery. 32 In some cases, that mistake could waive the entire subject matter covered by the item produced. 33 Therefore, once a privileged document has been disclosed, all communications between the same attorney and the same client on the same subject that occurred before the time of disclosure would lose protection of the privilege. 34 (It should be noted that such a harsh penalty does not apply to information covered by the work product doctrine, however. 35 ) 29 Michael Marron, Discoverability of Deleted Time for a Closer Examination, 25 SEATTLE U. L. REV. 895, 913 (2002). 30 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 31 See JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 2290 (McNaughton rev. ed. 1961) (explaining the history of the privilege). 32 See, e.g., In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672, 675 (D.C. Cir. 1979). 33 United States v. Keystone Sanitation Co., 899 F. Supp. 206, 208 (M.D. Pa. 1995). 34 Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1191 (D.S.C. 1974). 35 Id. at

17 IMPACT OF ELECTRONIC DATA Thus, when a jurisdiction follows this broad mistake rule, one simple error could eventuate in the waiver of a large quantity of otherwise-protected communications. On the other end of the spectrum, another trend rejects the subject matter rule within the context of inadvertent waiver of the attorney-client privilege. Cases occupying this trend restrict the scope of the waiver to the communication at issue. 36 Because there is no case law discussing a waiver of privilege through the inadvertent release of electronic information, particularly in an document, it is unclear how far such a waiver might extend. 2. Judicial Approaches to Inadvertent Waiver The courts currently are divided as to whether or not the inadvertent disclosure of electronic information waives the attorney-client privilege. Essentially, three approaches appear to govern this issue: the strict approach, the lenient approach, and the case-by-case approach. The strict view holds that any disclosure of privileged information, whether inadvertent or not, constitutes a waiver of the privilege. This approach invokes the policy underlying the rule of privilege and argues that the rule is useless if its policy is ignored. The court in FDIC v. Singh 37 explained: The purpose of the privilege is to protect the confidences of clients so they may freely discuss their legal concerns with counsel. However, when a document is disclosed, even inadvertently, it is no longer held in confidence despite the intentions of the party and thus, the privilege is lost even if the disclosure is inadvertent. 38 In the case of Underwater Storage, Inc. v. United States Rubber Co., 39 the court likewise held that the inadvertent disclosure of a privileged document by an attorney waived the privilege, stating: [o]nce the document was produced for inspection, it entered the public domain. Its confidentiality was breached thereby destroying the basis for the continued existence of the privilege In re Sause Bros. Ocean Towing, 144 F.R.D. 111, 116 (D. Or. 1991); Parkway Gallery Furniture, Inc. v. Kittinger/Pa. House Group, Inc., 116 F.R.D. 46, 52 (M.D.N.C. 1987) F.R.D. 252 (D. Me. 1992). 38 Id. at 253 (quoting In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989) (quoting In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984) (citation omitted))) F. Supp. 546 (D.D.C. 1970). 40 Id. at

18 FDCC QUARTERLY/WINTER 2004 An obvious advantage to this approach is its uniformity in application: no one need guess the consequence for an inadvertent disclosure. Likewise, courts applying this strict rule maintain that it will prompt attorneys to secure covered information by taking necessary precautions. However, even under the best of circumstances, human beings make mistakes, and regardless of the precautions taken, a mistaken disclosure will precipitate waiver. In addition, it seems harsh to punish clients for what may be nothing more than clerical error. The second approach affords greater leniency, invoking a limited waiver test. This theory accepts that the waiver must be intentional and urges that the concept of inadvertent waiver presumes an inherent contradiction. 41 Since the client actually holds the privilege, the client should not be vulnerable to the possibility of clerical mistake by its attorney. Therefore, jurisdictions that adopt this test generally will find no waiver of privilege when the disclosure of confidential information is inadvertent. However, critics of this approach argue that it provides no incentive for attorneys to carefully guard a client s communications. 42 The trend adopted by a majority of courts when determining whether an inadvertent disclosure results in waiver continues to espouse a case-by-case approach that employs a multi-factor balancing test. This test usually includes some form of the following factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measure taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving a party of its error. 43 Under this approach, a waiver of confidential information essentially occurs only when a party fails to take reasonable precautions in maintaining the privilege. 44 By measuring each case under a multi-factor test, the disadvantages posed by the other two approaches are addressed: the result is more equitable, but attorneys still must be diligent about protecting client communications. Despite these characteristics, however, this approach has been criticized for its lack of predictability. 45 Because the analysis is limited to a case-by-case appli- 41 CIBA-Geigy Corp. v. Sandoz Ltd., 916 F. Supp. 404, (D.N.J. 1995); Mendenhall v. Berber- Greene Co., 531 F. Supp. 951, 955 (N.D. Ill. 1982). 42 See, e.g., Bank Brussels Lambert v. Credit Lyonnais, 160 F.R.D. 437, 442 (S.D.N.Y. 1995). 43 United States v. Keystone Sanitation Co., 885 F. Supp. 672, 676 (M.D. Pa. 1994); see also Alldread v. City of Grenada, 988 F.2d 1425, 1433 (5th Cir. 1993) (citing similar factors). 44 FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 482 (E.D. Va. 1991). 45 See Audrey Rogers, New Insights on Waiver and the Inadvertent Disclosure of Privileged Materials: Attorney Responsibility as the Governing Precept, 47 FLA. L. REV. 159, 175 (1995). 108

19 IMPACT OF ELECTRONIC DATA cation, it is difficult for parties to find and use precedent, and attorneys are without guidance about governing protocol. In addition, this approach may prompt additional litigation over the many factors that must be defined and weighed under a given set of facts. 3. Recommendations for Change to Waiver Rules Despite its inherent predicaments, electronic storage and access has improved the discovery process in many ways. Documents specifically requested can be found easily using computerized search tools, alleviating hours spent manually sifting through boxes of file folders. Likewise, enormous collections of information can be transferred to a computer disk in seconds and presented to the requesting party, rather than copying each individual page, organizing the production, and then transporting the results. These advantages, however, may be overshadowed by the onerous nature of a privilege review. Because of existing uncertainty regarding the permanence of an inadvertent waiver, attorneys are forced to review each potentially responsive document manually in search of privileged information. In order to alleviate such uncertainty, courts might broaden the scope of inadvertent waiver protection. Currently, parties expend unreasonable amounts of time and money providing a thorough review of requested electronic documents in order to preclude the escape of protected information that might jeopardize an entire category of evidence. Much of this effort could be saved if the discovery rules provided for automatic return of material that was inadvertently disclosed. If the nature of the allegedly protected material was in dispute, relief could be sought from the court. Such a practice is already invoked by agreement in complex litigation involving voluminous document production. In fact, the court in Rowe Entertainment, Inc. v. William Morris Agency, Inc., 46 recommended this procedure, although the opinion noted that the procedure could not be required. In 1999, Texas adopted a specific rule to address this problem. Rule 193.3(d) of the Texas Rules of Civil Procedure reads as follows: A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made the producing party amends the response, identifying the material or information produced and stating the privilege asserted. If the producing party thus amends the response to assert a privilege, the requesting party must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege F.R.D. 421 (S.D.N.Y. 2002). 47 TEX. R. CIV. P (d). 109

20 FDCC QUARTERLY/WINTER 2004 Comment 4 to Rule 193.3(d) further explains its purpose: Rule 193.3(d) is a new provision that allows a party to assert a claim of privilege to material or information produced inadvertently without intending to waive the privilege. The provision is commonly used in complex cases to reduce costs and risks in large document productions. The focus is on the intent to waive the privilege, not the intent to produce the material or information. A party who fails to diligently screen documents before producing them does not waive a claim of privilege.... The ten-day period (which may be shortened by the court) allowed for an amended response does not run from the production of the material or information but from the party s first awareness of the mistake. 48 Another suggestion for reducing the strain caused by privilege review calls for amending the rules and allowing a party who is producing electronic evidence to reserve any privilege objection until trial. Such a reservation would prevent the parties from having to examine every document handed over during discovery, saving both time and money. While this reservation would seem to delay the necessity of a privilege review until just before trial, the vast majority of civil actions settle before then, obviating any delayed costs. Unfortunately, this suggestion seems to create more problems than it solves. How could the opponent prevent a party from using any privileged information, once received, to seek additional, follow-up discovery? How could an opponent prevent a party from sharing the privileged information with third parties? And how would any limitation of this sort be enforced? A final approach advocates the adoption of a new minimum precautions rule. This standard would apply uniformly to cases involving inadvertent disclosure of privileged information in confidential communications and would measure the risks associated with each questioned transmission. Courts would then determine whether the appropriate security measure had been taken in light of the corresponding risk. 4. Procedures That Help Prevent Inadvertent Waivers Several courts have developed specific discovery protocols to help parties avoid the inadvertent production of privileged information. In Playboy Enterprises, Inc. v. Welles, 49 the plaintiff requested access to the defendant s computer in order to restore any deleted e- mail messages that had not been overwritten. Obviously, the defendant objected. Looking to resolve the conflict, the court allowed the plaintiff access to defendant s computer, but grafted several restrictions on the recovery process in order to protect any privileged infor- 48 TEX. R. CIV. P (d), cmt F. Supp. 2d 1050 (S.D. Cal. 1999). 110

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