A Transatlantic Approach to Electronic Data
Keys to Managing E-Discovery and E-Disclosure
Headline cases on e-discovery have been a feature of U.S. legal life for some years now. Across the Atlantic, the Brits are beginning to consider the impact of electronic documentation on their own litigation process. While the terminology and processes are different, the fundamental issues faced are the same and legal professionals in both jurisdictions continue to demand more information on the subject.
While there is no relevant case law as yet in the U.K., many U.K. lawyers are casting nervous glances at the U.S. experience and the high profile cases there. The U.K. system was changed in the late 1990s from a system of discovery to one of disclosure, with duties imposed on parties to ensure that the volume of documentation produced remains proportionate to the value of the case or the importance of the legal principles at stake. Some attorneys in the U.K. believe that this overriding principle will hold back the tide of electronic data that needs to be reviewed. This belief is buttressed by the recently published Commercial Court Guide and a working group draft Practice Direction on the Use of Technology in Civil Proceedings that both seek to restrict the electronic data that will be considered relevant to a case.
While the volume of e-disclosure that will arise in the U.K. is up for debate, there is little argument that the working practices that produce a vast number of electronic documents will inevitably lead to the need to consider some electronic data in the disputes that subsequently occur. U.K. lawyers and their clients are looking to the U.S. for examples of best practice of how to prepare.
Meanwhile, the U.S. case law is developing at a steady clip. Courts around the country are considering — some implementing — local rules aimed at changing the way attorneys manage the electronic portion of discovery in any case. The Advisory Committee on Civil Rules of the U.S. Judicial Conference recently approved proposed amendments to the Federal Rules of Civil Procedure to address, among other things, e-discovery. These amendments could become law by the end of 2006. The media continues to report the blunders of companies and their law firms who haven't yet mastered the art of appropriate electronic housekeeping. All of these factors add up to one thing — attorneys face a steep learning curve first to understand electronic discovery, and then to stay current with the nearly constant developments in this area of practice.
It is not just litigation that is driving e-discovery. On both sides of the Atlantic the pace of merger activity is increasing. As attorneys counsel their clients through the merger and acquisition process, they need to be mindful of the volume of electronic data that must be produced to relevant regulatory authorities.
Whether you are dealing with discovery obligations in the U.S. or considering which documents to disclose in the U.K., the answers to certain key questions will position you to handle electronic discovery or disclosure effectively in any case.
Pinpoint Electronic Data and Custodians
The first step is to answer three questions to pinpoint the electronic
data and custodians for the case at hand. 1) Who are the document custodians
of interest? 2) Who are the holders of electronic evidence relevant to
the issues at hand? and, 3) Who is knowledgeable about how and where
electronic documents are created and stored? The answers to these "who" questions
will help you formulate your overall strategy. In the same way you identified
key players and likely witnesses early in traditional discovery, you
must also pinpoint specific electronic document custodians or specific
computer users in e-discovery and e-disclosure cases. You should work
closely with your client to prepare an outline — even a partial
organisational chart — of all people who may have created, received,
or shared relevant information on their computers.
Identify the Types of Documents in the Case
Knowing who likely created responsive and potentially relevant electronic
data is a good start. Next, you must think about the types of electronic
documents that were created by the key players.
Not all computer users create information in the same way. Company executives and members of upper management primarily use standard office software, including email and word processing programmes, or presentation software such as Microsoft® PowerPoint®.
People in finance and accounting departments tend to create large numbers of spreadsheets and other numbers-based data, and may use database systems. Engineers or computer programmers often use computer-aided drawing programmes or other specialized technical software. The best way to gather, process, and review electronic data depends greatly on the kind of data at issue.
Focus on the Location of Documents
Once you've identified the key players and likely witnesses in the case,
and have an idea of the types of electronic documents they created, you
need to think about where their electronic data resides. Where is backup
data stored? Where are documents saved on the network? Where are email
messages kept? What are the options for local storage on hard drives
and removable media? Gathering this information early is necessary to
guide an effective discovery or disclosure process.
As a requesting party in the U.S., you should schedule a Rule 30(b)(6) deposition of the person most knowledgeable about your opponent's computer systems in order to determine all the likely locations of relevant electronic data. Courts frown upon catchall "any and all electronic data" requests. Answering the "where" questions early in the case will guide you in formulating appropriately targeted electronic discovery document requests, and will position you for the most effective and efficient electronic discovery process possible.
As a responding party, the "where" questions must be answered as soon as litigation is pending or imminent. You need this information to carry out document preservation obligations and to determine from what locations you will need to collect data in order to respond to forthcoming document requests. Having this information in hand early in the case can save considerable expense and delay once discovery is underway. Addressing the "where" questions in an expedient manner will also serve to minimize business interruptions for your client.
In the U.K., the Court will expect the parties to discuss any issues that may arise regarding searches for and the preservation of electronic documents in advance of the first Case Management Conference. The new Commercial Court Guide states: “This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies”. Identifying someone within your client’s organisation to provide such information will be vital.
Determine the Time Frame – Duty to Preserve
and Data Creation Considerations
Timing considerations are relevant in every e-discovery and e-disclosure
case. In turn, there are two questions that must be answered at the outset:
1) When does the duty to preserve electronic data attach? and, 2) When
was the responsive data created?
The first "when" question centers on the desire to avoid claims of spoliation. In paper discovery, typically intentional acts prompt claims of improper document handling or allegations of spoliation. In electronic discovery, changes to data — even unintentional data destruction — can occur unless you take immediate precautions as soon as litigation is pending or imminent. For example, backup tapes are typically rotated and recycled by companies on a predetermined schedule. If potentially relevant data is overwritten — even with the best of intentions and in the normal course of business — courts may find evidence of spoliation. End users also delete and overwrite data on a daily basis. Without immediate answers to the first "when" question, your client will begin the electronic discovery process at a distinct disadvantage.
The second "when" question involves the time of creation of responsive data. As a requesting party in the U.S, you should narrowly tailor your electronic document requests to a sensible time period. This is another area where courts routinely demonstrate reluctance to allow overly broad requests. As a responding party, you will be able to begin data gathering and plan your electronic document review approach only after you know what time period is at issue. The same imperative applies in the U.K. where the Court will expect to see the date range limited to relevant dates. With this information in hand, you can provide guidance to your client to avoid accumulation of excess data and unnecessary costs.
Conclusion
In the near future many legal professionals on both sides of the Atlantic
will face their first real experience with e-discovery or e-disclosure.
For some, this will mean advising clients about proactive measures to
streamline electronic discovery before U.S. discovery or U.K. disclosure
obligations arise. For others, the experience will feel like trial by
fire — scrambling to gather, process, review, and produce electronic
documents in the heat of battle. From whatever position you begin, you
must answer the identified key questions involving electronic data early
in your case.
About the authors:
Sean Flynn is an attorney and a member of the
New York Bar. He is also an active member of the American Bar Association
Section of Litigation. Mr. Flynn serves as Director of Strategic Planning
for LexisNexis Applied Discovery located
in Seattle, Washington. Mr. Flynn has worked with many legal professionals
and their clients helping to educate them about the evolving law and practice
of electronic discovery. Prior to joining Applied Discovery, Mr. Flynn
served as General Counsel for Boltblue International Ltd. located in London,
England as well as for the law firm of Fried Frank. He can be reached at: sean.flynn@applieddiscovery.com.
Jonathan Brewer works as LexisNexis Butterworths’ U.K. e-disclosure expert. Mr Brewer currently works with U.K. legal professionals and the judiciary on various matters related to e-disclosure. Prior to joining the company, Mr Brewer practiced in London as a commercial litigator. Mr Brewer can be reached at: jonathan.brewer@lexisnexis.co.uk.
