Industry Can t Hide from E-Discovery

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1 E-Trucking By M. Garner Berry Industry Can t Hide from E-Discovery It is important for both lawyers and trucking companies to proactively identify and preserve potentially relevant electronic information as early on as possible in litigation. E-discovery is invading almost every aspect of litigation these days, particularly in the trucking industry. Advances in technology and in the equipment found in trucks over the past 10 years have allowed large com- mercial carriers to more safely, efficiently and innovatively transport goods across the country. Additionally, the emergence of electronic control modules, satellite tracking equipment, messaging systems and trip recorders have created a new dimension of discovery and document production once litigation against a trucking company or its employees arise. The vast amount of electronic information that now exists, along with the Federal Rules of Civil Procedure amendments related to e- discovery, has brought new obligations, and every trucking company and trucking lawyer should be aware of them. The days of gathering and producing boxes of paper logs, trip inspections, maintenance documents and the like, are slowly dwindling to an end. Further, large, national carriers are not the only carriers affected by new e- discovery obligations. Regional carriers, and even the smallest mom and pop shops in rural Mississippi can be affected by electronic discovery obligations. While small trucking companies may not have high-tech satellite equipment, many of even the smallest companies still have cell phones or personal GPS tracking systems, such as Tom-Tom or Garmin, which have become commonplace and may contain mounds of electronic information that could be relevant, discoverable and require preserving. Under the newest e- discovery- related rules and case law interpreting them, it is not enough for a lawyer to simply rely on a company to preserve relevant information or documents. It is now incumbent on a company and the lawyers working for that company to see that all relevant electronic information that another party might seek as discoverable is preserved very early. Communication between a carrier and its attorney and determining where this electronic information resides and is stored are key obligations for a trucking carrier lawyer before, during and after litigation. Given that the field of electronic discovery in general is growing at a rapid pace and its extensive size and complexity should not be dismissed or trivialized, having some nec- n M. Garner Berry is a partner in the Jackson, Mississippi, office of Daniel, Coker, Horton, and Bell, P.A., focusing on trucking litigation, product liability, premises liability and general litigation. Mr. Berry sits on the firm s E-discovery committee, and he is a member of DRI s Trucking Law, Young Lawyers, Product Liability and E-Discovery Committees. Mr. Berry is currently serving as the Substantive Liaison between the DRI Trucking Law and Young Lawyers Committees DRI. All rights reserved. For The Defense n February 2010 n 49

2 essary building blocks and positive open communication with a trucking company can well get you on your way to effectively defending a company and addressing many of the e- discovery issues that may arise during litigation. What follows is a basic, electronic discovery primer and brief best practices guide to assist a trucking lawyer in planning and litigating trucking cases. First, become familiar with a trucking company s overall business structure and organization. Electronic Discovery Primer The discovery of electronically stored information (ESI) has been covered for quite some time by the Federal Rules of Civil Procedure, as well as by state court rules, such as the Mississippi Rules of Civil Procedure. Mississippi Rule of Civil Procedure 34, along with many other states, and Federal Rule of Civil Procedure 34, prior to its amendment, have long stated that requests for production of documents from a party include other data compilations. The recognition that advances in technology had opened a new frontier in discovery led to the amendments to the Federal Rules of Civil Procedure. In 1999, the Civil Rules Advisory Committee began to meet and propose amendments to the Federal Rules of Civil Procedure to accommodate the technological advancements, ESI and electronic production. After public consideration and comment on a proposed set of rules, the proposed rules were revised and submitted to the United States Supreme Court, which approved them in April These new rules went into effect on December 1, Most significant are the e- discovery amendments that affected rules 16, 26, 33, 34, 37 and 45 and Form 35. The Committee Notes to each amended rule offer examples of ESI discovery that may be encountered, as well as explain the rationale of each amendment. While the explosion of electronic discovery, governing rules and precedent 50 n For The Defense n February 2010 has developed primarily in federal courts, which have taken the lead in interpreting the new landscape, state courts have also recognized emerging electronic discovery issues and reacted accordingly. This expansion of e- discovery issues in state courts has vastly increased the prevalence of electronic discovery in trucking litigation against national, regional and local carriers, and hence created a necessity for all trucking lawyers to become familiar with the landscape and gain some understanding of electronic discovery to effectively represent a client. For instance, on May 29, 2003, the Mississippi Supreme Court amended Mississippi Rule of Civil Procedure 26(b) to include discovery of electronic or magnetic data, which is clarified in Rule 26(b)(5). While Mississippi case law interpreting the amendment is sparse, the amendment process in and of itself represents recognition of technological advancements and their effects on discovery in litigation. Because of the breadth of the changes, an attorney should read and become familiar with the amended rules, as well as the Committee Notes and Comments, to the extent possible. Under the e- discovery amendments, an attorney might need to take immediate action on receiving notice of a complaint, so the time to familiarize yourself with the applicable concepts is now. An attorney who waits to read the rules and notes until after litigation has commenced will be at a distinct disadvantage. Furthermore, many tasks related to electronically stored information may be required well before a suit is filed, such as preservation obligations and litigation hold directives, which are of particular interest to corporate counsel. Pre-Litigation Client Relationship Best Practices The author recognizes that due to spontaneously created relationships between many trucking companies and their attorneys, which frequently first occur when a lawsuit is anticipated or when a complaint is first served, an attorney may not have the ability to complete many of the tasks described below as early as would be ideal. However, each task is still vital and you should complete them as soon as your involvement begins and continually monitor task completion. In the world of e- discovery, knowledge, continual monitoring and compliance are key. First, become familiar with a trucking company s overall business structure and organization. Zubulake v. UBS Warburg LLC, illustrates the importance of this task. 217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake I). In this case, the court held that deciding the scope and cost of electronic discovery requires a three-step analysis: (1) A thorough understanding of the responding party s computer system, with respect to active data and stored inaccessible data; (2) Because a cost- shifting analysis is so factintensive, it s necessary to determine what information the inaccessible data contains; and (3) the cost- shifting analysis requires consideration of multiple factors. Familiarize yourself with a company s electronic information technology and computer operating systems and determine what information is created and retained by the company. Determine how electronic information that may be relevant to a company s legal needs is stored within the company and where it is stored. Second, determine methods that a company may use to restore and retrieve relevant information. Be mindful of the cost of retrieving electronic information and whether retrieval can be accomplished by a company s document retention or IT personnel, if such personnel exist, or whether an outside vendor will be necessary. Id. Third, establish a relationship with a company s document retention department and IT departments and personnel. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 439 (S.D.N.Y. 2004) (Zubulake V) ( In sum, counsel has a duty to effectively communicate to her client its discovery obligations so that all relevant information is discovered, retained, and produced. In particular, once the duty to preserve attaches, counsel must identify the sources of discoverable information. This will usually entail speaking directly with the key players, as well as the client s IT personnel ). Identify document retention and IT personnel to assist and guide you through the life of a lawsuit. Educate document retention and IT personnel on the litigation process and the

3 type of information that another party will likely seek during particular types of lawsuits. Identify early the document retention and IT personnel who may serve as 30(b)(6) witnesses in litigation to testify regarding a company s electronic systems and information. Fourth, identify and collect company document retention policies. Specifically, Review and analyze document retention policies and discuss a company s protocols for carrying out the policy with the policy custodian or custodians, meaning the individuals responsible for routine destruction of business documents. If appropriate and feasible, address and correct any shortcomings in the policy or procedures implementing the policy. Ensure the document retention policy is being adhered to and complied with exactly! In order to benefit from routine good-faith destruction of business information and avoid later spoliation instructions or even sanctions, the policy must be adhered to at all times. Doe v. Norwalk Community College, 248 F.R.D. 372 (D. Conn. 2007); In Re Krause, 367 B.R. 740 (Bankr. D. Kan. 2007); United Medical Supply v. United States, 77 Fed. Cl. 257, 259 (Fed. Cl. 2007); Disability Rights Council v. Washington Metro. Transit Auth., 242 F.R.D. 139, 146 (D.D.C. 2007); School- Link Technologies, Inc. v. Applied Resources, Inc., 2007 U.S. Dist. Lexis (D. Kan. Feb. 28, 2007); and Peskoff v. Faber, 244 F.R.D. 54 (D.D.C. 2007). Best Practices in Anticipation of and During Litigation Discovery You will want to undertake the following tasks if you anticipate litigation, as well as during litigation discovery. First, at the moment that impending litigation is known or should have been known or expected, an attorney must become proactive. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV). Once a party reasonably anticipates litigation, it must suspend its routine document retention and destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. Id. Implementation of a litigation hold within a trucking company is required at this point, if not already in place. Second, form an electronic discovery team consisting of the attorney or attorneys who will work on the case, the trucking company s IT personnel, the trucking company s document retention personnel, the contact person within the company, in-house counsel and any other person deemed appropriate, to work together throughout litigation to gather and produce relevant electronic information properly and effectively. Communication and collaboration within the team are essential. National Ass n of Radiation Survivors v. Turnage, 115 F.R.D. 543, (N.D. Cal. 2006). Not only must a party identify, locate and maintain relevant information, but it must also communicate these obligations to employees in possession of the relevant information. Id. Anticipate the electronic information that an opposing party might seek and begin implementing your plan for retrieving and organizing potential information that you might have to produce. Identify and interview document custodians and key players persons, drivers or other employees who may have created or are storing information very early in the process, to discuss the case and information that a company must retrieve. Implement a plan to alter or suspend routine destruction of business records, to assure that relevant discoverable information is not destroyed during routine business operations. Third, determine the point at which preservation of all relevant information is necessary, which will likely be a date in the past, and distribute a preservation litigation hold letter throughout the company to all document custodians and key players to stress the importance of preservation from the determined preservation date until litigation concludes. Kronisch v. United States, 150 F.3d 112, 126 (2nd. Cir. 1998). The duty may arise when an individual or entity should have known that specific documents and records would be relevant to future litigation. Id. There is no bright-line rule about when the duty begins. For a plaintiff, the duty may begin when the plaintiff determines that it has a sufficient basis to initiate a cause of action or at the time that it attempts to retain counsel to prosecute an action. For a defendant, the duty may begin when notice of a demand or claim is received. An attorney must, however, continually monitor throughout the litigation process adherence to preservation and litigation hold procedures and send follow- up preservation litigation hold letters to the appropriate custodians and key players within the company. It is counsel s obligation to monitor compliance with a client s preservation obligations. See, e.g., Heng Chan v. Triple 8 Palace Inc., 2005 U.S. Dist. Lexis 16520, at *16 (S.D.N.Y. 2005); Fayemi v. Hambrecht and Quist, Inc., 174 F.R.D. 319, 326 (S.D.N.Y. 1997); and Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991). Fourth, issue a preservation letter to opposing counsel immediately. Remind opposing counsel of the general duty to preserve. It is best also to cite specific documents and information that want opposing counsel to preserve, to avoid confusion. Fifth, provide copies of the document retention policy to the document custodians and key players and discuss with them their duty to preserve during the litigation process. Sixth, determine your discovery strategy for the case overall, and specifically, your strategy for obtaining needed relevant electronic information from the opposing party. Determine what electronic information you may need from the opposing party. Consider an early 30(b)(6) deposition of the opposing party, to assess the electronic information that may be available. Seventh, pursuant to the Federal Rules, confer with opposing counsel to discuss the electronic information relevant to the case and the means for retrieval and production. Develop a plan, and preferably commit the plan to writing, constituting the agreements. Communicating and effectively planning with the other side greatly reduces the burdens on the parties and the court. Fed. R. Civ. P. 26(f); Rebman v. Follet Higher Education Group, Inc., 2007 U.S. Dist. Lexis (M.D. Fla. 2007); and In re Seroquel Products Liab. Litig., 2007 U.S. Dist. Lexis (M.D. Fla. 2007). In particular, discuss (1) the types of documents and information sought by each For The Defense n February 2010 n 51

4 Lawyers now have an affirmative duty to exhaust all possible sources of electronic information generated by trucking companies. party for production and the format in which the information is to be produced; (2) search terms and keywords and the best methods to be used when retrieving ESI and documents, including date ranges; and (3) how to handle inadvertent productions of privileged information and documents, including clawback provisions or opportunity for quick peek at documents. See The Scotts Co. v. Liberty Mutual Ins. Co., 2007 U.S. Dist. Lexis (E.D. Ohio 2007); Cache La Poudre Feeds, LLC v. Land O Lakes Farmland Feed, LLC, 244 F.R.D. 614, 628 (D. Colo. 2007) ( [I]n the typical case, responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronic data and documents ); Hopson v. Mayor and City Council of Baltimore, 2005 U.S. Dist. Lexis (D. Md. 2005); Williams v. Taser, Int l, Inc., 2007 U.S. Dist. Lexis 40280, *7 (N.D. Ga. 2007). In addition, address the costs of retrieval and production and who will bear the cost. Toshiba America Elec. Components, Inc. v. Superior Court, 21 Cal. Rptr. 3d 532, (Cal. Ct. App. 2004) (holding that a requesting party may be required to share in the expense of restoring backup tapes when the costs are beyond those typically involved in responding to routine discovery ). Identify and discuss potential witnesses and key players at this juncture with opposing counsel, as well. Finally, promptly and adequately respond to the opposing party s discovery requests. Keep the following in mind: Remember, your duty to produce relevant information, including ESI, begins 52 n For The Defense n February 2010 with initial disclosures. If possible, address ESI in your initial disclosures. Review discovery requests thoroughly with document retention and IT personnel to find the information requested and determine how to retrieve and produce it. While company personnel may be knowledgeable about the company s the electronic processes, they are typically strangers to the litigation process and its requirements. Review all information prior to its production, specifically marking and withholding all privileged material. Maintain a detailed list of the information produced during discovery, the processes followed in identifying and retrieving the information, where the information was maintained and retrieved and how the information had been stored within the company. This procedure should avoid spoliation charges and related sanctions and establish the foundation for admissibility of the information as evidence. Post-Litigation Best Practices As long as post-trial motions and appeals are ongoing, all above procedures should be continually followed. Once a case is completely resolved, routine business procedures should resume in their entirety, including resumption of routine document retention policies. Post- litigation is an ideal time to reevaluate company procedures for the creation, storage, handling and destruction of documents and information, including ESI and document retention policies. See The Sedona Conference Working Group Series, The Sedona Guidelines: Best Practices & Commentary for Managing Information & Records in the Electronic Age (2004). Common Trucking Industry Sources for Electronic Information and Discovery Sources of electronically discoverable information can be quite numerous in a trucking company. Using the above practices along with effective and open communication with the trucking company and outside vendors that a company may utilize, a lawyer and trucking company can efficiently identify electronically stored information that may exist and its location, and begin the process of preserving and retrieving the information that a plaintiff may ultimately ask you to produce during litigation. Satellite Tracking and Monitoring Devices Many trucking companies, particularly large national and regional carriers, utilize satellite tracking and monitoring devices on trucks to track trucks, trailers and loads, and to communicate quickly with drivers. Many and various satellite systems are used by trucking companies. Basically understanding where the electronic information for these various systems is stored will allow a company and lawyer to begin navigating the roads to retrieval of the relevant electronic information. For example, Qualcomm systems, which produces OmniTRACS, OmniVision, OmniExpress, TrailerTRACS and SensorTRACS, consist of computer hardware installed on a tractor truck that communicates with two satellites orbiting the earth. The combined use of the onboard computer equipment and the satellites allows a driver and a dispatcher to communicate with one another electronically while a driver is on the road. Such communication abilities allow a driver and dispatcher to exchange text messages regarding the existing trip, a trip change or other driver routing information that may arise during a trip. Additionally, Qualcomm systems, depending on what tracking service plan a trucking company may choose to purchase, allows drivers to record their driving time and log data electronically, enter and monitor information about loads through the system, and also tracks for a company the location of trucks and the loads. Satellite systems also allow engine monitoring and monitoring of tractor performance, much as an electronic control module (ECM), as discussed below. In short, retrieving electronic information may require an attorney to search beyond a trucking company, for instance, with a satellite monitoring company that the trucking company utilizes. Case law has made clear that it is no longer enough to check only with the trucking company and rely on what the company retrieves and produces. Lawyers now have an affirmative duty to exhaust all possible sources of electronic information generated by trucking companies and to assure that these companies have diligently searched and preserved

5 all relevant, identifiable, electronic information. For example, although Qualcomm, located in San Diego, California, converts the raw information received from its satellites and sends it electronically to the dispatch center of a trucking company in a readable form, the raw data remains on Qualcomm s networks and servers and it may become necessary for an attorney to retrieve certain information from Qualcomm. Other information transmitted over satellite equipment may be stored at the company s dispatch center or on a truck s onboard computer hardware. Other situations could arise in which a trucking company no longer retains electronic information, depending on its electronic storage procedures and document retention policies, and you may need to obtain the information from a satellite company for a particular case. Satellite companies do retain this transmitted information on their systems. As a result of this increased electronic information from technology such as satellite tracking systems, trucking companies now store millions of documents electronically. And while these systems have their obvious advantages, retrieving this electronic information requires increased knowledge and communication, as described above, between a lawyer and a trucking company. Electronic Control Modules Most tractor- trailers, particularly models from the past 10 years, are now equipped with electronic control modules (ECMs). An ECM is built into the engine of a truck and records onboard data from the truck during events such as a motor vehicle accident. It can contain a wealth of electronic information related to a crash or other truck- related litigation. ECMs can record data such as speed, braking times, RPM data and mileage, as well as almost any other mechanical feature associated with a tractor- trailer. Unlike satellite tracking device systems, ECMs do not record data on a remote server, but instead, they record data onboard the actual modules in vehicles. Typically an ECM records data on a continuous loop of approximately 30 to 90 days, so if a particular tractor is involved in an accident, early identification of the ECM can be essential to preserving the potential electronic evidence. However, identifying the existence of an ECM is only half the battle, as its data is not stored in an identifiable form on the actual onboard computer that you can produce, but must be downloaded to a separate computer or other device with appropriate software so that the data can be organized into a recognizable form. Therefore, when you know that an ECM exists, it is necessary to identify an individual within the trucking company, or retain a third- party vendor, such as an accident reconstruction consultant or e- discovery consultant, to download the information, organize it into a readable form and have the information preserved for production during litigation. Other Possible Sources of Electronic Information When identifying a trucking company s electronic information, attorneys should make sure to identify all electronic computer systems that a company may use. These systems may include networks, storage systems, backup media, business computers and personal computers of drivers and other employees. Attorneys should also consider external media, such as flash drives, CDs and mobile devices. Counsel for a trucking company should also be acutely aware of the various software applications that a company may use that produce electronic information. One common service offered by many trucking companies today includes electronic data interchange (EDI), which allows a trucking company customer to transmit shipping and load information electronically, and thereafter, monitor the status of the shipping. All of this EDI information is, of course, maintained on a trucking company s computer servers and may be relevant to discovery. Electronically stored information is not limited only to a company s internal storage devices either, but also to various external devices. External storage systems may include third- party companies that retain, transfer and destroy data, or sources from which it can become difficult to obtain information, such as a driver s or other employee s PDA, a GPS navigation device, MP3 player or other device. All of these devices store electronic information, some onboard and some in remote locations, and you should consider them when determining what electronic information may exist. Obtaining electronic information and tracking a company s work product from these latter devices can be very difficult, and may even be considered inaccessible, if a company has no means to track and preserve information not kept as part of the ordinary course of business. However, to avoid spoliation and information destruction consequences, a company and attorney may be required to preserve information from these devices, should they be deemed to have potentially relevant information. The prevalence of these small, readily available devices, such as cell phones, PDA s and personal GPS navigation devices, has made retrieving electronic information during litigation from even the smallest trucking company a common reality. Conclusion Given federal and state rules related to electronic discovery and case precedent interpreting them that emerges every day, it is important for both lawyers and trucking companies to proactively identify and preserve potentially relevant electronic information as early on as possible in litigation. E- discovery rules and related law can affect the largest carriers to the smallest companies. However, communicating with appropriate individuals from the first possible moment can have an impact. While e- discovery and its ins and outs can seem daunting for the average trucking defense litigator, the tools necessary and essential to understanding what is needed is not difficult to attain. The key is to identify a company s technology from the outset and then contact sources to retain and retrieve information. The technology and safety features used in today s tractors as well as those of the future will continue to move a once paperfilled industry to store information with more frequency in electronic format. The key to effectively preserving relevant electronic information and competently representing a trucking company, now and in the future, is and will be open and honest communication between a lawyer and trucking company, as early and often as possible, to learn about the company s operations and technology, to avoid unnecessary adverse instructions, penalties and sanctions. For The Defense n February 2010 n 53

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