Roundtable
Discussion
Electronic
Discovery
Part
I
May
5, 2004
As
computers have become the focal point for information storage, creation of documents
and communication, litigators have had to turn their attention to the handling
of electronic discovery. Courts are beginning to issue decisions explaining how
this emerging area of discovery should be handled. Wisconsin Law Journal editor
Tony Anderson sat down recently with a panel of people who have followed the development
of electronic discovery. What follows is part one of their roundtable discussion.
 |
| (Front)
Ross L. Kodner, Founder, MicroLaw, Inc.; Shawn R. Olley, Owner, Midwest Paralegal
Services, Inc.; (Back) Stephen C. Odenthal, Founder, Odenthal Investigations,
LLC; Stephen E. Kravit, Founder, Kravit, Hovel, Krawczyk & Leverson, s.c.,; William
J. Mulligan, Shareholder, Davis & Kuelthau, S.C. |
WISCONSIN
LAW JOURNAL: What would you say to lawyers who think that they're going
to approach electronic discovery the same way as they would approach paper discovery?
WILLIAM
J. MULLIGAN: If you are preoccupied with only paper discovery, which we still
have, you are going to be potentially missing significant and substantial evidence
in a case. We're living in an era where there is an information explosion. There
are studies that indicate that about 90 percent of all written documents are prepared
on computers. And there are extensive volumes of computer-generated data that
is never printed.
If
you ignore the possibility that there is a significant amount of electronic evidence,
you stand the chance that you will have a bad result in litigation, the potential
of malpractice claims, and the potential of ethical concerns being raised. This
electronic evidence may be more significant than paper documents because it will
— with the metadata that is available with the electronic documents —
indicate who initiated the document, whether it was obtained from an earlier draft
of a document, who may have gotten blind carbon-copy or who got copies of the
document electronically, revisions that were made, or changes that were made.
There is significant evidence there that needs to be obtained.
STEPHEN
E. KRAVIT: I would add that any lawyer who's been practicing since the 1970s
will find that the issue of documents in other than paper form is not new since
two provisions in the Wisconsin Civil Procedure Code deal with such information.
The first being the most general, 804.01(2)(a), which is the general provision
governing discovery and relevancy. Everything we talk about today is going to
be moderated by relevancy, the ordinary standard … that parties can obtain
discovery regarding any matter, not privileged, which is relevant or reasonably
calculated to lead to the discovery of relevant, admissible evidence.
You'll
note that in 804.01(2)(a), which is not a discovery provision, per se, it defines
"relevant evidence" as, "including the existence, description,
nature, custody, condition, and location of any books, documents, or other tangible
things." Then if you move over to the actual Discovery of Documents provision
… it says, that the scope of production of documents would include, among
documents and other things, "data compilations from which information can
be obtained, translated, if necessary, by the respondent through detection devices
into reasonably usable form."
So
the present rules and ones that have been in effect for a very long time have
anticipated document discovery that would involve more than just a paper document.
Anyone who has been not thinking about that for the last 20 years or so has not
really been using the rules to their full degree.
MULLIGAN:
The Federal Rules are substantially the same, except that they also contain a
provision requiring that the parties meet for a discovery conference and make
initial disclosures. That has been interpreted by the courts to require an absolute
duty of disclosure that you possess your documents in electronic form.
There
is a Bristol-Myers Squibb class action case in which the parties met and agreed
to produce responsive documents [In re Bristol Myers Squibb Securities Litigation,
205 F.R.D. 437 (D.N.J. 2002)]. They were produced pursuant to an agreement that
one party would pay so much per page for them. But what the drug manufacturer
failed to disclose was that these documents all originally existed only in electronic
form, and they blew back paper copies.
The
court refused to require the payment of the fee —— the money for copying
charges — and also sanctioned the parties and counsel for failure to disclose
the existence of these documents in electronic form and required their later production
in that electronic form.
ROSS
L. KODNER: I predict, in relatively short order, that among all malpractice
claims filed in every jurisdiction in this country, we will see the highest incidence
shift away from issues related to trust fund management, et cetera, to litigation-related
malpractice. When Bill mentions the Federal Rules and the absolute duty to disclose,
there's a big presumption there that the litigator who is managing that process,
really understands what there is to disclose.
What
we're experiencing is this absolute head-on collision between what has traditionally
been compartmentalized as technology in law practice with substantive law and
procedural law. Today you can't practice law —in any area of practice, but
certainly in any area that has any litigation component — without understanding
the underlying technology concepts of the forms that discoverable information
can take, the kinds of experts to use and how to evaluate forensics experts to
go out and find this information.
Let's
say that in a discovery situation, there are documents rife with metadata contained
in Microsoft Word documents or in PowerPoint. Does an absolute duty to disclose
incorporate the metadata that's in those files? It certainly fits the definition
of "tangible information" in the Wisconsin Statutes. I think the answer
is "yes." And I think there are a shocking number of lawyers around
this country, many who are experienced litigators, who have never even heard of
these concepts. These are malpractice situations waiting to happen. …
It's
essential that lawyers understand from the perspective of simply counseling clients
in the ordinary course of business about the kinds of electronic document retention
and destruction policies they should have to make sure that there isn't information
that's being kept inadvertently, which could expose their clients to risk before
litigation is ever contemplated.
KRAVIT:
I want to react to something Ross just said. I'm not sure the answer is clearly
"yes" to whether metadata or other associated data to a discovery document
is required to be produced, at least in the first instance. I want to back up
a step and say that the discovery challenge involving electronic documents is
really no different than other intrusive discovery devices that are well-settled
within discovery law.
For
example, what could be more intrusive than being required to take a physical examination
and share the results of whatever your bodily functions are with another side
in litigation? Yet that is already a standard rule and is subject to various reasonable
procedures and protections. The same would be true of entry on land or entry into
your property or your home.
In
a civil context all of this can occur already within the rules that we have now.
The courts have had little trouble over the years in figuring out what's reasonable
and what isn't and what's intrusive and what's not. Electronic data discovery
is no different.
The
difference is that the volume of material that's generated or potentially in the
universe to review is so huge that there are incredible costs… When someone
says, "Yes, you may review this," there's a whole subset of questions
as to how that's going to be done. Who's going to pay for it? Are routine things
that occur within a network discoverable? Will the routine destruction of data
somehow create an inference of criminality? Many groups have tried to analyze
these questions.
One
thing I've found on the Web that I thought was very useful was a group called
The Sedona Conference. That organization's work is available and free to anyone
on the Web at www.thesedonaconference.org.
One
of their principles is that, "Absent a showing of special need and relevance,
a responding party should not be required to preserve, review, or produce deleted,
shadowed, fragmented, or residual data or documents." So when you're specifically
saying metadata, there's a whole mess of other stuff in that definition. What's
evolving is an understanding that there should be a secondary showing of need
for that kind of information.
In
an ordinary case, maybe you wouldn't need that. But you might have a case where
you need to know what changes were made in a document and you could show why you
needed to know that...
With
that showing, you might be able to get the metadata, or other data. I think that,
because of sophisticated litigation around the country and the amount of money
and talent that's been thrown at this issue, there has to be kind of a pull back…
There is the usual court filtering down of what is reasonable in the circumstance.
STEPHEN
C. ODENTHAL: I have found in my cases that there almost always is some filtering
down and narrowing of the scope. I mean, you can't just go in and say, "I
want everything on this computer." That's impossible and costs too much money.
Besides, there may be privileged communications and things like that — in
civil litigation, in particular — where it is not appropriate for somebody
to be looking at it or disseminating it.
There
are provisions like Special Mastering … that can be done to narrow the scope
of the search for particular documents and then letting the court decide whether
these are privileged areas or not.
I'm
a certified computer forensic examiner, so I have a little different take on this
than most of you. But the question about approach to electronic discovery is different
than paper in a couple regards. Electronic data is hard to destroy and, at the
same time, easy to destroy. When you delete something, it's not really gone.
It's
still there for a forensic examiner.
KODNER:
It's like a cockroach. It's hard to kill.
ODENTHAL:
It's hard to kill. On the other hand, if time lapses and people are using the
computer or special utilities are used against the computer, this data can be
easily overwritten and completely erased. So I know you can take paper and burn
it and throw it out and shred it and things like that. But with electronic discovery,
there really is a time element in regards to how quickly you need to get at it
and preserve the evidence, so that somebody can look through it even while the
arguments are being made about, what metadata may be appropriate and not privileged
or privileged, et cetera.
KODNER:
This brings up an interesting question. When discovery commences, clearly people
are put on notice and evidence needs to be preserved at that point. If part of
that potential evidence is contained on a network hard drive or an individual
workstation hard drive and the discovery order is specifically requesting information
related to certain subjects and it's clear that that information may exist on
those drives subject to that discovery order; however, there are other things
on that hard drive, where the hard drive is used in the ordinary course of business
— I'm always wondering about the question of intentional spoliation of potential
evidence.
The
systems are being used. The company can't shut down its operation. It agrees to
keep the items that are subject to the discovery order untouched. But are they
really untouched?
Underlying
metadata, things like hidden cache files, which could have very relevant information,
end up getting modified and changed just in the ordinary course of using the system.
Do you have sanctionable activity happening that's almost unavoidable?
ODENTHAL:
That's why I say … that time is of the essence in these cases. Because every
minute that somebody uses that computer can overwrite and modify the metadata
that's on there.
MULLIGAN:
The case law doesn't seem to distinguish between unintentional and intentional
spoliation or destruction — tampering with the evidence. The only role that
that seems to play is in the type of sanction that a court may impose, whether
they're going to impose adverse inferences. It is sort of the death penalty in
a civil case to get an instruction from the court that a party has deliberately
destroyed evidence that could have been helpful to the other party in proving
their case.
Sometimes
they award costs, or limit proof, or issue other sanctions in the case.
Spoliation
can kick in before the case is actually started. When you have knowledge of the
possibility of a case — a claim being made, the spoliation doctrine would
apply…
KRAVIT:
Can I add one thing? The difference between this kind of electronic mass of information
and what most lawyers would analogize to somebody's document collection is that
the document collection at least in physical terms is static. … People could
move it around, reorganize it, hide it, throw it away, put it away in a drawer,
all the things people do. … It's there. But electronic data is a snapshot.
The day that you look for it is the day it is in that form. Every other day and
every other minute, it's in some other form.
KODNER:
There's fluidity to it. It changes.
KRAVIT:
Almost like when you do a garnishment on someone's account. It may have money
in it. It may not, depending on luck — the flow of money. … Once you're
informed that there's an action pending and you should preserve your documents
it's different for electronics than it would be for paper.
For
example, if you got an order today that you're in litigation and you give orders
to all your subordinates to preserve their paper documents, does that mean that
they pick up literally the physical trash that they've thrown out that day and
save it? No. Nobody would think that that's true. So why would it be true in electronics
that things that are deleted are discoverable?
The
other point that I wanted to make regarding Bill's point about spoliation is that
there are obligations regarding spoliation that don't relate to civil discovery.
One of the things that I talk about a lot are the new obstruction of justice statutes
that came out of Sarbanes-Oxley and the entire law of obstruction of justice…
Law of obstruction of justice used to be that you had to know that there was an
investigation in order to violate the law by destroying something related to the
investigation.
That's
no longer the case. The language that was inserted in the statute, within Title
18 of the U.S. Code, relates to anyone who destroys, mutilates, conceals, covers
up, falsifies a document, in electronic or other format, in relation to or contemplation
of any matter or case. So now your criminal conduct is being measured by your
knowledge of whether or not a case could be brought.
KODNER:
It's a realization of the state of the situation rather than the actual situation.
Steve,
you said something really interesting. This is where I want to play devil's advocate
for a moment. You talked about the distinction between paper and paper in a garbage
can. Would someone view the paper that's been intentionally thrown away in the
garbage can being subject to discovery? You're the expert in these areas.
I'm
not. But in a criminal matter, I believe the answer would be sure. If it's on
those premises, it could be taken.
At
that point, if that company had a document destruction policy, that paper would
have gone through a shredder. It wouldn't be crumpled and sitting in the garbage
for someone to grab. … There are two very different camps. One camp has said
the electronic situation is so nightmarish in terms of data lurking all over the
place and very difficult for people to manage — for the client to manage,
let's try and protect them by creating these … absurd distinctions, saying,
it's there, but we didn't intend it to be there, and we shouldn't have knowledge
of it.
My
view is exactly the opposite. Take metadata, for example. For a lawyer responsible
for protecting the confidential client information and counseling their clients
about these things to be able to stand up and say, I've never heard of it, your
honor, so it's not reasonable that I would have ever known or that my client would
have ever addressed this issue, is ludicrous. It's like saying, we don't know
that there are engines in cars because when we lift the hood all we see is plastic.
Why should we know there's an engine? Well, of course there's an engine. There's
something underneath.
SHAWN
R. OLLEY: But it's happening all the time. The degree of sophistication between
an attorney within a large law firm, sharing offices with other lawyers down the
hall, compared to a sole practitioner — it's a huge difference. We've found
that attorneys are crippled by the fact they don't have time to keep up with the
technology because it's changing month to month to month. The software is expensive.
When they get the electronic data, it's something they haven't seen before and
they're intimidated...
MULLIGAN:
There's a federal decision that I think every lawyer should read, the Metropolitan
Opera decision out of the Southern District of New York [Metropolitan Opera Assoc.,
Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003)], where the attorney for the
union in that case, who was the defendant, reacted to an electronic discovery
demand in a very cavalier fashion and did very little in terms of oversight and
monitoring.
The
court went through in a very lengthy opinion, pointed out all the things that
counsel had failed to do, leaving it entirely to the client to decide what the
electronic data was that they were going to produce and how they were going to
produce it. The court castigated the defendant and the counsel for the cavalier
way that they handled it and imposed significant sanctions on the defendant in
that case because of the way they had treated repeated demands for electronic
discovery. Lawyers cannot just hide their head in the sand and think they're going
to get away with leaving it to the client or the client's IT people. That just
is not going to sail anymore in the courts.
OLLEY:
I think it's changed a lot even in the last six months, where attorneys are becoming
much more educated, at least realizing they need to ask the questions. …
Although their first reaction is "I want to force it to paper," they
go to the people who have the expertise within their firms or to an outside vendor
and are told to keep electronic documents in the native format in which they were
created and maintain it in a database. It's infinitely cheaper than forcing it
to paper and coding it into a database manually.
KODNER:
The New York State Bar is one of the first state bars that has made a specific
overt statement regarding metadata contained in files. They consider it unethical
to look at that information. I think that's absurd. It's a free pass for ignorance.
… Saying that it's too complicated to learn is like saying, there's a new
law — like Sarbanes-Oxley or a tax reform act — but it's so complicated,
we shouldn't have to know it.
Just
like learning a new body of law, we're dealing with a new set of rules related
to evidence and the production of evidence. It just means that people are going
to have to go through some pain and effort and acknowledge they have a responsibility
to learn these things to be able to practice law…
OLLEY:
Well, think how many firms have dozens of attorneys and no IT support within the
firm.
KODNER:
What are people, who represent corporate clients, telling them in terms of electronic
document storage and retention policies? Are they building up this massive relevant
discoverable damaging information because they never counseled their clients?
I don't think this is a technology issue at all. This is a law practice issue.
What's
going to happen is somebody's going to be on the cover of the National Law Journal
or the Wisconsin Law Journal as one of the first lawyers sued for failure to advise
their clients or failure to disclose this kind of information.
ODENTHAL:
I'd like to respond to something that Shawn said about smaller law firms having
IT people on their staff. A word of caution here — an IT staff is not the
place to turn for this type of activity regarding electronic evidence.
KODNER:
That's right. Knowing how to maintain somebody's network does not translate into
understanding metadata.
ODENTHAL:
It's just like any other specialty. You have to have a specialized capability
to be able to retrieve, collect, analyze and review.
OLLEY:
I think it directly relates to how much value they put on a computer software
that they maintain in their office and how they're able to manage the documents
that come to them, whether they are paper or electronic.
KRAVIT:
I agree with you on retrieving and the details of finding stuff. But the basic
chore of determining what's relevant and what is discoverable and how to defend
it or how to get it is the lawyer's chore. It's not the technologist's chore.
I'm
all for judicially imposed standards that are less than fabulous for lawyers,
so that we can all practice without fear of suit. Nonetheless, I would say, if
you take an example of a Word document that ends up being produced in a case where
… it's contained electronically, the document itself is what's relevant.
I don't have trouble with a standard that says, without more, all you get is the
document, not the metadata.
KODNER:
It depends on how you define "documents." To me, the electronic document
is the file. And whatever that file might contain, that's the document.
KRAVIT:
But I'm getting to relevance here. The relevant thing is what someone said in
a document or e-mail, not the production or how many words were changed to get
there. Now, somebody might get that as a bonus, and that might end up being relevant
to them. But out of the box, what's relevant is the document…
MULLIGAN:
Steve, I have to disagree with you. When we talk about documents, the large percentage
of them are now being exchanged between parties electronically. They're not being
sent by U.S. Mail in a paper document form. That being the case, what's being
electronically sent is fair game for production and is admissible relevant evidence,
assuming that there is a relationship to the case.
ODENTHAL:
The metadata is an integral part of the document — when it was created, when
it was possibly deleted, when it was modified and possibly prior content of the
document. In 90 percent of my cases, those dates and other data like that are
very relevant to the outcome of the case.
MULLIGAN:
There is a committee of the Federal Judicial Conference that's considering rule
changes that would relate to the electronic discovery. The Sedona position is
being advocated there. But there are conflicting views.
From
discussing the matter with people who have attended those sessions and heard the
testimony that's been given, it's really unlikely that the law is going to be
changed at least in those respects. There may be a codification of some of the
case law with regard to shifting of costs and things of that sort. But to see
a change where you're only going to be able to see what a printed version might
look like is absolutely unlikely.
