Articles
Counsel Are in First Position When It Comes to Discovery of Electronic Evidence
(As published in Summer 2007 edition of Oregon Association of Defense Counsel)
By Katherine R. Heekin
In the movie A Bug's Life, the grasshoppers return to the land where the ants were supposed to stockpile food for the grasshoppers while they were away. Upon hearing the return of the grasshoppers, Flik, a hare-brained innovator, accidentally knocks over the stockpile with his latest invention, scattering the food everywhere in his hurry to get down into the anthill. Hopper, the leader of the grasshoppers, is angry and confronts the Queen-in-training, who tries to avoid being responsible because she is new to the job. Hopper replies, "The first rule of leadership is: Everything is your fault." That's also true for lawyers who wish to avoid having to understand all that computer stuff tangled up in the new federal rules regarding discovery of electronic evidence.
Under the new rules, counsel have an affirmative obligation to advise their clients to stop routine document destruction and to identify, preserve, and search all sources of potentially relevant information as soon as the client reasonably anticipates litigation. See Fed. R. Civ. P. 37(f) and Advisory Commitee Note ; see also , Zubulake v. UBS Warburg, LLC , 229 F.R.D. 422, 432 (S.D.N.Y. 2004) ("[I]t is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched."); see also , Chan v. Triple 8 Palace, Inc., 2005 WL 1925579 at *6 (S.D.N.Y. Aug. 11, 2005) ("The preservation obligation runs first to counsel, who has 'a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction'" and then to management, as well, if the client is a business.) The difficulty in fulfilling this obligation comes from not knowing what those sources could be and whether the information stored there is accessible or not.
Under the new rules, if the information is not reasonably accessible, then the lawyer must list the source where that information is stored, state that the information is not reasonably accessible, and describe why it is not reasonably accessible with enough detail that the requesting party can evaluate the burdens and costs of providing the discovery and the likelihood of finding relevant information there. Fed. R. Civ. P. 26(b)(2)(B) and Advisory Committee Note . If the requesting party challenges that designation, then counsel has to be able to show the court why that information is not reasonably accessible, which means counsel has to understand hardware, software, .ost files, .pst files, near-line storage, off-line storage, and data recovery tools, etc. to explain the burden and cost to produce that information. Id. Counsel also has to be able to prompt the client's thinking about where the data might be, and if the client does not know, insist on talking to someone else who does until counsel is satisfied that counsel has exhausted every possible source of knowledge. In addition, counsel has to know enough about hardware, software, and storage devices to ask the questions that will cause the client to disclose information that they had not considered relevant, but from the lawyer's vantage point, it is. These duties arise from the rules of civil procedure and Oregon's code of professional conduct.
Counsel cannot sit back and say, as the Queen-in-training did, I'm new to this job. Instead, counsel must educate themselves or hire someone else who understands the technology to assist them. Otherwise, counsel may fail to provide competent representation to the client. As stated in ORPC 1.1 , "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Id. If counsel decides to hire someone else, then counsel should screen for that person as if counsel were hiring an expert on liability or damages because it is likely counsel will need a declaration or testimony or both from that person during the discovery process. If that expert is not abiding by best practices for preserving, collecting, and producing electronic evidence, then the client's case may be prejudiced, and the client will look elsewhere for counsel in the future. Compare Gates Rubber v. Bando Chemical Industries , 167 F.R.D. 90 (D. Colo. 1996) to Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999). Thus, counsel must know enough about technology to adequately select and oversee the expert's work.
Moreover, counsel is responsible for protecting client confidences. ORPC 1.6. That obligation is more complicated in discovery of electronic evidence because in most cases, it will cost too much and take too long to eyeball every potentially relevant file for privilege. Consequently, counsel may hire an expert to use software to filter out privileged information using key terms, but that search is only as good as the terms. For example, if I filter for my full name, Katherine Heekin, but not for K.Heekin, and someone has stored my name in their email as K.Heekin, those emails will get through the filter and will be inadvertently disclosed to the opposing party. Consequently, the new rules expect that counsel will discuss and reach an agreement about inadvertent disclosure of privileged information, which the court may include in the Rule 16 order. Fed. R. Civ. P. 16(b)(6) and 26(b)(5)(B) . In addition, a new rule of evidence, FRE 502, which will take effect in December 2008 if Congress approves it, creates an exception to a waiver of the privilege if the disclosure was inadvertent. See www.uscourts.gov/rules under the Federal Rulemaking tab to view the proposed rule's text.
Finally, counsel has a duty of fairness to the opposing party and counsel. ORPC 3.4 . In discovery, counsel cannot "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document" or "fail to make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party." Id. That means counsel cannot remain deliberately ignorant about where electronic evidence is stored and whether or not it is accessible. Moreover, counsel cannot misrepresent that information is inaccessible, when it is accessible, or produce the information in a form that is more difficult to use. See Fed. R.Civ. P. 26(b)(2)(B) (responding party "must show that the information is not reasonably accessible") and Advisory Committee Note to Fed. R. Civ. P. 34(b) (responding party may not convert electronically stored information to a form that makes it more difficult or burdensome for the requesting party to use). Perhaps most important, counsel must keep in mind that counsel can be held personally, financially responsible for negligent destruction of evidence once the duty to preserve exists. See Fed. R. Civ. P. 37 ; In re Napster , 462 F. Supp. 2d 1060, 1066 (N.D. Cal. 2006) (negligence is the standard for imposing sanctions) (citing Glover v. BIC, Corp. , 6 F.3d 1318, 1329 (9 th Cir. 1993)); In re September 11 th Liability Insurance Coverage Cases , --- F.Supp.2d ----, 2007 WL 1739666 (S.D.N.Y. June 18, 2007) (insurer and counsel jointly and severally liable for $500,000 as Rule 37 sanctions).