E-Discovery: A Common Sense Approach. In order to know how to handle and address ESI issues, the preliminary and

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1 Jay E. Heidrick Polsinelli (913) E-Discovery: A Common Sense Approach In order to know how to handle and address ESI issues, the preliminary and obvious question must be addressed: What is ESI? ESI, or Electronically Stored Information, is simply information stored in an electronic form. There are obvious forms of ESI that we encounter every day such as s, word processing files or spreadsheets. This type of ESI covers the bulk of electronically stored information. It has been reported that each person produces almost 800 megabytes of recorded information per year, and 92% of this information is stored on computers or computer storage media. 800 megabytes is the equivalent of 30 feet of books stacked end to end and demonstrates the mass of ESI produced every day. However, ESI is much more than standard computer files. If you use a passkey to enter your office, the passkey system is likely connected to a computer terminal that logs each person s entrance to the building. This information is saved on the system and is therefore considered ESI. Voic s are recordings kept in electronic form and could be considered ESI. Courts have even recognized that text messages constitute ESI. 1 Websites such as Facebook, My Space, Twitter, etc. would also likely qualify as ESI. It 1 Flagg v. City of Detroit, 242 F.R.D. 346, (E.D. Mich. 2008).

2 can be assumed that if you are holding a paper copy of a document, that document likely originated from an electronic source. But ESI also lurks within an electronic file. Electronic files contain embedded data and metadata. Embedded data is electronic data that has been deleted from the file but is still embedded within it. Metadata is contained within the file that shows information such as who created and edited the document and when those actions occurred. Embedded data and metadata are not visible on the face of the document, but do exist and qualify as ESI. Given the vast amount of ESI that exists, it is imperative that a party devise and implement a proper ESI protocol. I. Creating an ESI Protocol In order to create a proper ESI protocol, you must set boundaries early when the duty to preserve evidence begins. You must then create a plan on how that protocol will be executed. Below are some of the major topics you should consider when creating and implementing an ESI protocol. A. Set Boundaries Early. Due to the indeterminable breadth of ESI, it is imperative that a litigant establish boundaries early to determine what steps are necessary to locate and preserve relevant ESI. This includes steps that should be taken before a lawsuit is filed. Pre-Litigation 2

3 The duty to preserve relevant evidence begins when a party reasonably anticipates litigation may ensue. Therefore, when a demand letter is received, this likely triggers the duty for a party to preserve relevant evidence. 2 Often demand letters will be accompanied by a statement that the party should take steps to preserve all relevant evidence. Traditionally, this meant gathering and copying relevant documents. But ESI now presents a different challenge because of the amount of ESI which may exist; the multiple locations where it may be stored; and the fact it is continually created. Therefore, a party which receives a demand letter should take sufficient steps to clarify what is necessary to preserve all relevant information. When your client receives a letter to preserve all relevant information the party should respond with a letter outlining the steps that will be taken to locate and preserve ESI. If the opposing party never responds or objects to the process, your client will be better protected should the opposing party later complain that proper steps were not taken to locate and preserve ESI during the pre-litigation stage. If the opposing party objects to the plan outlined by your client, you will have the opportunity to reach an agreement as to what steps will be taken. This will again protect your client as the opposing party has consented to the procedure. And even if no agreement can be reached, your client can still apply to the court through a declaratory judgment action and ask the court to establish its discovery obligations. 2 Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263, 267 (8th Cir. 1993). 3

4 While the prospect of engaging opposing counsel or even filing a declaratory judgment action may seem extreme and unconventional, it is a necessary step. First, it forces you and your client to consider the claim early and to evaluate and document what steps must be taken. But most importantly, it provides security for your client. Locating and preserving all relevant ESI is much like trying to find every fish in the ocean. It simply cannot be done. Therefore, the goal is not to locate and preserve every relevant piece of ESI, but rather to establish a protocol that clearly defines your client s duties. If your client does not take steps to establish an acceptable protocol early through agreement or court order, and something is later discovered to be lost, the only correspondence between the parties is the letter where the opposing counsel requested that your client preserve all relevant information. Thus, your client will be in a position to explain why it did not preserve all relevant information as opposed to explaining how that information did not fall within the agreed protocol. During Litigation If a lawsuit has been filed, it remains critical that the parties establish a relevant ESI protocol for the same reasons as above. Furthermore, many local rules now require that the parties agree to an established ESI protocol. 3 This of course leads to the obvious question of What needs to go into an ESI protocol? Below are some examples of issues that should be included in an ESI order: 3 See e.g. 4

5 normally presents largest amount of electronically stored information that is collected and reviewed. It therefore is also the most costly. An ESI protocol should establish whether or not will be produced and if so, the relevant dates and custodians to be searched. For example, if the lawsuit involves a product liability claim, it should be determined whether or not created before the development of the product in issue is likely to be sufficiently probative in the face of the burden to produce it. Narrowing the list of custodians and relevant dates will also narrow the amount of ESI to be collected and reviewed. In turn, this will reduce the overall ESI expense incurred by your client. 2. Types of files. The parties should determine if there are any types of files which should be excluded from search and production. For example, a program file likely does not contain any relevant evidence in most litigation. Therefore, a Word document will likely be relevant. But the actual Word program is not likely to have any discoverable information. Media files such as.wav or.mov are difficult and expensive to search. The parties should consider and resolve what, if any, types of files should be excluded from production. 3. Custodians. Another consideration is determining who are likely custodians of ESI. If a party is a small company with only a few employees, then all of the employees may be custodians. In this case, the search for ESI is easier as all of the employees may have relevant ESI. 5

6 However, for a large company, it will be necessary to determine the likely ESI custodians. An ESI protocol should address not only those custodians who will be searched for ESI, but also a procedure for identifying and limiting future custodians who will be searched for relevant ESI. This will, in turn, help reduce ESI costs. 4. Evidence created after filing. Finally, one key issue to resolve is whether or a party will be obligated to locate and preserve relevant ESI which is created after the lawsuit is filed. While information may be created which is technically relevant, the probative nature of that evidence must be weighed against the cost and burden of locating and preserving it particularly since much of it may be attorney-client privileged communications or work product. B. The Collection, Preservation and Production of ESI ESI Vendors The best advice for the collection, preservation and production of ESI is the often quoted rule Do what you know and know what you do. Depending on the issues and costs involved, consider retaining an outside vendor to assist with this process. In some cases, courts have held that an outside vendor is required in order to fully comply with a party s obligations regarding ESI. For instance, when a large amount of ESI exists, courts recognize that key word searches may be used to identify and produce relevant information. However, courts have held that a key word search is a complicated question involving the interplay, at least of the sciences of computer technology, statistics 6

7 and linguistics... Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be likely to produce information and the terms that were used is truly to go where angels fear to tread. 4 In dealing with ESI, lay professionals often fail to recognize the technical issues involved. These include failure to identify the difference between copying a file and replicating a file; the failure to produce information as stored in its native format; and the failure to include attachments that were originally included with s. Therefore, it may be best to utilize a qualified vendor to collect, preserve and produce ESI. If you hire an ESI vendor, there are several considerations which should be made. For instance, it should be determined what role the vendor will play. Will the vendor serve as a collection agent for ESI or is that a task that can be performed by your client s internal IT department? If your vendor will be collecting evidence, will the vendor agent be coming from out of town, or is there a local agent who can perform the collection? If the agent does come from out of town, is your client responsible for an hourly rate for travel or just during the collection itself? Does the vendor charge your client a monthly fee to maintain the information? What security will the vendor have to protect the information it collects? When interviewing vendors it is critical to determine what fees will be incurred and how the vendor will charge for its services. Be careful of vendors who nickel and dime for every service and are unwilling to compromise on their pricing structure. ESI 4 United States v. O Keefe, 537 F.Supp.2d 14, 24 (D.D.C. 2008); Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260 (D.Md. 2008). 7

8 work is a fiercely competitive industry. Quality vendors are flexible and will be willing to work with you on pricing. Do not be afraid to get multiple bids to drive the best deal for your client. Type of search to perform You should also determine what type of search should be performed. One method is to have a vendor image all of the custodian s relevant locations, process the information and provide it to you for review and production. This is feasible in cases which do not involve a large number of custodians or amounts of ESI. However, if there are numerous custodians, it may be cost prohibitive to conduct this blanket approach. In this scenario it is best to remember that the goal of ESI collection and production is no different than traditional discovery. In dealing with paper discovery, an attorney would never ask a client to copy every document in every file cabinet and produce to the attorney for review and production. ESI is no different. In cases of large amounts of custodians and ESI, it is important to recognize the distinction between preservation and production. It is quick and relatively inexpensive to image hard drives and server folders of locations where ESI may be located simply to preserve the information. However, for production purposes, it will likely be cheaper to conduct manual interviews of these custodians and then identify the specific folders and locations where ESI may be located. Then, a party can search and produce ESI from those specific and targeted locations thereby reducing costs. And even if it is later determined that other relevant ESI exists, because the information has been preserved by imaging the entire drive, it can later be collected, processed and produced. By 8

9 recognizing the distinction between production and preservation, a an attorney can further reduce ESI costs. II. Conclusion ESI is a large and hot issue in civil discovery. If mismanaged or not taken seriously, it can have a detrimental effect on the result of your case. But development of an ESI protocol that satisfies a parties obligation to locate, preserve and produce ESI can reduce a party s exposure and reduce costs. 9