E-Discovery For Dummies
You can make e-discovery easier by knowing how the court separates electronically stored information (ESI) into two tiers; the seven basic steps in e-discovery; implications of the e-discovery federal rules; and the timeline that actually begins prior to litigation.
E-Discovery Categories of Electronically Stored Information
In e-discovery, electronically stored information (ESI) is divided into five categories, which are grouped into two tiers based on the effort and cost needed to access ESI. Keep these categories in mind when requesting ESI or responding to a request:
|Category||What It Is||Accessibility|
|Active, online data||ESI created, received, or processed; or that’s quickly and frequently accessed. Examples: hard drives and active network servers.||First tier: reasonably accessible|
|Near-line data (short for near online)||ESI stored on removable media or accessed via automated or robotic storage systems. Access speeds range from a few milliseconds up to 2 minutes. Examples: optical disk and magnetic tape.||First tier: reasonably accessible|
|Offline storage and archives||ESI sent to storage. Unlike the first two categories, offline ESI is accessed manually. Examples: magnetic tape or optical disks; referred to as JBOD (just a bunch of disks).||First tier: reasonably accessible|
|Backup tapes, commonly using data compression||ESI stored for backup or disaster recovery and not organized for retrieval of specific files or messages. Retrieving ESI requires restoring the entire tape and might require reversing the compression used to fit more bytes of data. The discovery of ESI from backup tapes requires proof that their need and relevance outweigh their retrieval and processing costs. Example: backup tapes.||Second tier: not reasonably accessible|
|Erased, fragmented, or corrupted data||Erased, overwritten, fragmented (broken up and stored in separate areas), or corrupted files (damaged by computer viruses, or a hardware/software malfunction) are the least accessible. This ESI might be accessed only after significant processing or might be impossible to access at all.||Second tier: not reasonably accessible|
Seven Steps of the E-Discovery Process
In the e-discovery process, you must perform certain functions for identifying and preserving electronically stored (ESI), and meet requirements regarding conditions such as relevancy and privilege. Typically, you follow this e-discovery process:
Create and retain ESI according to an enforceable electronic records retention policy and electronic records management (ERM) program.
Enforce the policy and monitor compliance with it and the ERM program.
Identify the relevant ESI, preserve any so it cannot be altered or destroyed, and collect all ESI for further review.
Process and filter the ESI to remove the excess and duplicates.
You reduce costs by reducing the volume of ESI that moves to the next stage in the e-discovery process.
Review and analyze the filtered ESI for privilege because privileged ESI is not discoverable, unless some exception kicks in.
Produce the remaining ESI, after filtering out what's irrelevant, duplicated, or privileged.
Producing ESI in native format is common.
Clawback the ESI that you disclosed to the opposing party that you should have filtered out, but didn't.
Clawback is not unusual, but you have to work at getting clawback approved, and the court may deny it.
Present at trial if your case hasn't settled.
Judges have little to no patience with lawyers who appear before them not understanding e-discovery and the ESI of their clients or the opposing side.
E-Discovery Federal Rules of Civil Procedure and Federal Rules of Evidence
During the e-discovery process, keep the e-discovery amendments to the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Evidence (FRE) close by. These federal rules apply to the process for preparing and producing ESI, as well as for resolving related disputes.
Here are some of the implications of these federal rules.
FRCP 16: Courts expect you to be ready for litigation, including being fluent in the IT and network architecture, so that the pretrial conference leads to agreements on what ESI is discoverable. FRCP 26(f) sanctions for not obeying a scheduling or pretrial order are a good thing to avoid.
FRCP 26: Provides protection from excessive or expensive e-discovery requests, except when you don’t deserve that protection.
FRCP 26(a)(1)(C): Requires that you make initial disclosures no later than 14 days after the Rule 26(f) meet and confer, unless an objection or another time is set by stipulation or court order. If you have an objection, now is the time to voice it.
Rule 26(b)(2)(B): Introduced the concept of not reasonably accessible ESI. The concept of not reasonably accessible paper had not existed. This rule provides procedures for shifting the cost of accessing not reasonably accessible ESI to the requesting party.
FRCP 26(b)(5)(B): Gives courts a clear procedure for settling claims when you hand over ESI to the requesting party that you shouldn’t have.
Rule 26(f): This is the meet and confer rule. This rule requires all parties to meet within 99 days of the lawsuit’s filing and at least 21 days before a scheduled conference.
Rule 26(g): Requires an attorney to sign every e-discovery request, response, or objection.
FRCP 33: Defines business records that are created or kept in electronic format as discoverable giving the requesting party access to them.
FRCP 34: Establishes a structured way to resolve disputes over document production.
FRCP 34(b): Establishes protocols for how documents are produced to requesting parties. As the requesting party, you choose the form of production. Most often, the requested form is native file because those files tend to reveal the most. You might not have the equipment or expertise to read the produced ESI easily if it’s not in native form or a form you pick. This is usually a matter of negotiation between the parties.
FRCP 37: Judges have the power, courtesy of Rule 37(f), to impose sanctions against a party "who fails to obey an order to provide or permit discovery."
Rule 37(e): Creates a safe harbor from sanctions if you did not preserve, and therefore no longer have, ESI that’s requested provided that certain conditions and circumstances are met. Judges also have powers that are considered inherent in the court that expand the ability to impose sanctions beyond Rule 37.
FRCP 45: If you’re a nonparty to e-discovery, you’re protected from some of the costs or burdens that parties typically have to pay or endure.
FRE 502: Protects attorney-client privilege and provides some protection against inadvertent disclosure, if you’re quick enough to notice your mistake and meet other conditions.
FRE 502(b): If attorney-client privileged or work product protected material is inadvertently disclosed, you might be able to get it back if you took reasonable steps to prevent the error; and noticed and responded promptly to fix the error.
FRE 901: Requires that ESI, like physical evidence, be authenticated to verify that it is what it claims to be. Metadata may be used to authenticate an ESI.
Lawyers are subject to ethical rules relating to e-discovery imposed by the Code of Professional Responsibility.
Prelitigation and e-Discovery Timeline
Adhering to a pre-litigation and e-discovery timeline will keep you on track. Before litigation even starts, you must start evaluating — with your IT team and legal counsel — where you stand in terms of your electronically stored information (ESI). Here’s the process:
Prior to litigation: Preserve, preserve. preserve. That is, you have the duty to preserve when a legal action is reasonably anticipated. You need to take affirmative action to prevent the destruction or alteration of what might be relevant ESI.
Day 1: Lawsuit is filed and complaint is served on the defendant starting the clock that counts off the days.
By Day 99: Litigants must participate in a meet and confer conference to negotiate an e-discovery plan.
By Day 120: A scheduling conference is held bringing together prosecuting attorneys, defendants, defendant’s attorneys, and the judge to schedule certain dates and deadlines for the case.