New E-Discovery Guidance for Companies and Litigators

by Payne & Fears

Every company that uses email or stores files electronically (i.e. every company) finding itself in litigation must comply with increasingly onerous discovery obligations.  While electronic storage and transmission of data makes businesses run faster and more efficiently, it also creates huge headaches when a litigant is broadly asked to produce all documents related to “X.” 

Often there are multiple persons who have responsive emails and documents stored on a communal server or locally on their respective computers, tablets, phones, or other personal electronic devices.  Challenges arise relating to the time frames to be searched, and how to effectively review voluminous documents and determine which may be responsive.  How does one both efficiently and adequately search multiple repositories?  After all, failure to perform an adequate search may result in monetary and other sanctions.  So what is a beleaguered litigant to do?

Thankfully, the Sedona Conference just published the third edition of its treatise on modern e-discovery.  The Sedona Conference is a nonprofit research and educational institute dedicated to the advanced study of various legal issues.  It publishes the “Sedona Principles,” arguably the authority on modern e-discovery issues.  However, the Principles, originally published in 2003, had not been overhauled since 2007.  How outdated is that?  That was the year Apple released the original iPhone.  In 2007 most employees were not walking around with a sophisticated computer in their pockets.  The Sedona Conference’s recently-published third edition comes at a time when litigants need guidance regarding the last decade’s evolution of technology and the resulting e-discovery obligations.  On this front, a number of helpful topics are addressed by the new edition. 

E-Discovery Issues Are Inevitable in Modern Litigation.

The Sedona Conference’s third edition recognizes that e-discovery issues are inevitable in modern litigation.  It stresses that parties and their counsel must get ahead of the issue by, early on, developing an understanding of what relevant electronic information may exist, how and where it can be found, and the process, time, and cost needed to discover, review, and produce the information.

Sedona Emphasizes Proportionality.

In 2015, the Federal Rules of Civil Procedure were amended to add a “proportionality” element to the definition of the scope of discovery, whereby information is only discoverable if the costs associated with locating and producing it are proportional to the needs of the case.  This is an amorphous concept.  What is proportional to one side may seem wholly unreasonable to the other.

The Sedona Principles provide guidelines on how to deal with e-Discovery proportionality issues.  Proportionality should apply to all aspects of e-discovery and should be addressed comprehensively by the parties at the Rule 26(f) early meeting of counsel and Rule 16 scheduling conference.  Where a party objects to e-discovery on proportionality grounds, it is its burden to state the basis for the objection with reasonable specificity.   

Responding Parties Are Best Situated to Evaluate Their Own Procedures.

IT systems are complex and each is built to uniquely serve a business.  Thus, each litigant is often in the best position to understand and evaluate the proportionality of the procedures, methodologies, and technologies appropriate for preserving and producing its own electronically stored information.  Therefore, the responding party is tasked with making determinations as to the adequacy of its own search.  When it comes to objections to proportionality, expect challenges that the proverbial wolf is guarding the henhouse.  Placing the burden to establish proportionality on the responding party addresses this concern to some extent, but does so at the expense of any concrete standard that might head off discovery disputes.

Incompetent Spoliators.

Successfully destroying electronic information with the “intent to deprive” another party of its use (spoliation) is a big no-no, subjecting a spoliator to serious sanctions.  Sanctions might include monetary sanctions, evidentiary sanctions, issue sanctions, and even terminating sanctions.  Unintentional spoliation, on the other hand, is less offensive, but still potentially sanctionable under the right circumstances. 

But what of a failed attempt to permanently destroy evidence—an incompetent spoliator?  The spoliator may argue no harm, no foul since the evidence wasn’t permanently destroyed, and, in fact, a literal reading of the Federal Rules of Civil Procedure may support such a conclusion.  However, Sedona recommends that even the incompetent spoliator be sanctioned if there was an attempt to permanently destroy the electronic information with the “intent to deprive.”

Practical Implications.

E-discovery and the headaches and issues it creates are here to stay.  Litigants must get out in front of e-discovery issues and address them with counsel as soon as practicable.  The Sedona Principles are a useful tool for any litigant to understand its e-discovery obligations.  Once a company has knowledge of a claim or the likelihood of litigation, it should (i) identify potential repositories of discoverable electronic information, (ii) take steps to protect and preserve that information, and (iii) assess the accompanying burdens with an eye toward any potential proportionality issues or disputes down the road.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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