Welcome. This guide will cover the rules underlying modern ediscovery – as well as challenges, best practices, and tools to streamline ediscovery.
Many attorneys remember a time when “ediscovery” meant simply reviewing custodian emails.
Now, as we conduct much of our lives and business online, ediscovery has become profoundly complex. Even the simplest cases involve not just emails, but also texts and messaging apps, social media, collaboration platforms, geolocation, and more.
This guide will outline the legal foundations of ediscovery, plus how to navigate new technology and ever-proliferating forms of ESI. You’ll walk away with an understanding of the major considerations, challenges, and best practices for modern ediscovery.
What is ediscovery? Definition and background
We’ll start with a simple definition: In this article, “ediscovery” refers to discovery of any form of electronically stored materials.
For background, here’s a quick history of ediscovery:
In 2006, the Federal Rules of Civil Procedure were amended to add electronically stored information (ESI) as a category of discoverable materials.
In 2008, the United States Justice Department published an article on the ethics of ediscovery by then-Chief Magistrate Judge Paul Grimm of the U.S. District Court, stating:
“Because nearly all ‘records’ are ‘drafted’ and retained in electronic format, and the unceasing advances in technology make it easier and easier to access, store, transfer, and use electronic records, the resolution of issues associated with discovery of electronic data has become complicated.”
As you’ll soon see, that statement is even more true today.
Related: The Ultimate Guide to Ediscovery for Lawyers 💡
Ediscovery and the Federal Rules of Civil Procedure
The framework for ediscovery is rooted in the Federal Rules of Civil Procedure. They emphasize important considerations like:
The importance of early communication in ediscovery
Parties must consider ediscovery issues early in the case. This can include where discoverable information is located, how it will be produced, and more.
- Rule 26(f) states that a discovery plan “must state the parties’ views and proposals on…any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.”
The Advisory Committee notes on this section emphasize that parties should consider the capabilities of their computer systems, and are required to discuss how ESI might be produced when they confer and prepare the proposed discovery order.
- Rule 16, which addresses scheduling matters, notes that the court’s scheduling order may “provide for disclosure, discovery, or preservation of electronically stored information.”
In short: Parties should discuss ediscovery, including any anticipated issues with the form of production and availability of documents, at an early phase.
Production and preservation
The federal rules include obligations regarding the manner in which ESI is produced and the extent to which potential ESI is stored and maintained, such as:
- Rule 34 allows parties to request ESI “stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” In addition, parties may request production of ESI in a specified form. Parties must produce ESI in the form in which it is ordinarily maintained “or in a reasonably usable form or forms.”
- Rule 37 provides sanctions for failure to maintain ESI. Sanctions are limited to what is necessary to cure prejudice to the other party. Certain sanctions, including an adverse inference, jury instruction, or default judgment, are available only if a “party acted with the intent to deprive another party of the information’s use in the litigation.”
In light of the potential breadth of ediscovery, parties must also pay close attention to Rule 26(b). This addresses “Discovery Scope and Limits,” including:
- Limitation on the scope: The rule states that, “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” (Emphasis added.)
- Burden or cost: In addition, Rule 26(b) states that, “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”
Rules of evidence
In addition to the rules of civil procedure that govern discovery, consider the rules of evidence for authentication of evidence, which may vary depending on the type of ESI and why it is being introduced.
Local court rules
Also, look to local court rules and individual practices of judges, which may include guidance on the manner in which discovery is conducted before that court, meet and confer requirements, and more.
Many states have adopted rules of civil procedure similar to federal rules – but don’t assume they are the same. Review applicable rules regarding ediscovery in any state court in which you are practicing.
Civil vs. criminal matters
Finally, note that this guide addresses civil matters. Despite the increasing importance of electronic information in criminal cases, those rules are not as fully developed as civil rules, and are complicated by issues including constitutional challenges and indigent defendants, which we will not discuss in this guide.
Ediscovery best practices and procedures
Get started early
Ediscovery best practices start well before discovery requests are exchanged.
Make sure to review and understand your client’s document retention procedures. Once litigation has started or is anticipated, send litigation holds to company stakeholders and document custodians. Follow through to ensure not only that it has been received, but also that employees understand what must be retained.
By communicating with your clients about document retention and holds, you will already have an idea of where documents may be and who is responsible for them. This puts attorneys in a position to discuss discovery with opposing counsel and with the judge and consider potential issues well before discovery requests are served.
Best practices for responding to discovery requests
Once document requests are served, the clock starts ticking. This section will deal with the who and what of ediscovery.
“Who” – Custodians
A custodian is a person in the organization with access to relevant documents and information.
Certain custodians may be the same from case to case. For example, a company’s accountant will likely have relevant information in all cases involving monetary damages.
Custodians also may differ depending on the type of case. For example, marketing team members may be custodians in a case involving trademark infringement, while an employee in R&D might be a custodian in a product liability case.
If you are aware of specific communications involved in a case, identify the employees involved in those communications.
“What” – Electronically stored information (ESI)
Think creatively about what types of information are discoverable and where they might be stored. A party’s information technology personnel are a vital part of this conversation.
📝 Bonus worksheet: Keep track of IT team members’ roles and responsibilities
Be familiar with potential sources of ESI
The most common ones include:
- Computer systems: This includes legacy systems to which the company may still have access. Understand how your company stores electronic data (such as in the cloud) and where servers are located.
- Company devices: Individual devices, such as computers and company-issued phones, may contain discoverable ESI.
- Employee devices: With the expansion of remote work, take steps to understand how employees are using their own phones, laptops, and other devices for work. If it has not done so already, have your company consider implementing a “bring your own device” (“BYOD”) policy.
- Email: Email is often the bread and butter of ediscovery. Ask questions including: which custodians’ emails should be gathered, where emails are stored, and how long they are retained.
- Messaging: This broad category can include text, voice, and video messages, as well as collaboration platforms like Slack and Teams and messaging apps like WhatsApp, Signal, and Facebook Messenger. Messages can be compelling testimony, such as the inflammatory text messages that were part of the defamation case between Johnny Depp and Amber Heard. They can also provide other relevant evidence, such as whether a driver in a personal injury matter was texting and driving.
- Social media: As with messaging, the potential uses of social media in ediscovery are wide-ranging. In your discussions with clients on discoverable materials, explore whether there are company-sponsored social media accounts, as well as how employees use social media for work-related purposes, whether officially sanctioned or not.
- Videoconferencing: Don’t overlook communication via videoconferencing apps like Zoom and Google Meet, particularly in the era of remote work.
- Internet of Things: When many think of the Internet of Things (“IoT”), they envision smartwatches and home security trackers. But attorneys must learn about other applications relevant to their clients, which could include everything from data tracking in manufacturing facilities to using IoT applications to make hospitals run more efficiently.
Related: Time to Tune Up Your Ediscovery Performance 💡
Best practices for review and production
Reviewing and producing ESI can be daunting. Consider:
- The goals and requirements of the production in developing search terms
- Assessing which custodians to include in searching and reviewing ESI
- Evaluating other methods for reviewing ESI
Specify document format and metadata inclusion
At the beginning of the review and production phase, note whether the requesting party has asked for materials to be produced in a specific format.
While a requesting party is permitted to specify the form in which documents should be produced, the producing party may object.
Rule 34(b)(2)(E) governs the format in which ESI is produced, stating in relevant part:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms
Disputes over issues like producing in native format and what metadata to include will vary depending on the needs of the case and the ESI requested.
For example, in one dispute over unpaid wages, the employer was required to produce log files from its computer system regarding the employee’s access to the company’s computer system. The court noted that the requests were proportional and did not include materials to which they already had access. Mayhew v. Angmar Medical Holdings Inc., Case No. 18-2365-JWL-KGG (D. Kan. Oct. 25, 2019).
Consider creating a privilege log
Depending upon the volume of the production, creating an itemized privilege log documenting every withheld document can be quite cumbersome both for the producing and receiving parties. Discuss whether a privilege log can be categorized in a way that the opposing party and judge can reasonably understand which categories are being withheld.
Beware of the consequences of failing to claim privilege
Federal Rule of Evidence 502 governs waiver of attorney-client and attorney work product privileges in federal cases. Disclosure of privileged materials may not constitute waiver of privilege if the waiver was inadvertent, the party took reasonable steps to prevent disclosure, and the party promptly took reasonable steps to rectify the error. Party agreements and court orders also may assist in cases of inadvertent disclosure.
Objecting to a production request? Be specific
Despite the vast number of documents often included in the universe of potentially-discoverable ESI, it is necessary to carefully analyze requests for production and craft specific objections.
Rule 34 requires that, “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.”
For example, rather than using a boilerplate objection that the request is “overly broad and unduly burdensome,” state which portion of the request is objected to on this basis and why.
Best practices for crafting discovery requests
The discussion thus far has related mainly to parties searching for and producing their own ESI. Many of the same considerations apply to the requesting party.
You may want to craft a few broad discovery requests to cast a wide net and get a better sense of the other party’s case. However, be aware that requests including catch-all phrases like “any and all” will likely result in an objection (see the rules governing proportionality, above). Be prepared to narrow your requests.
Best practices for subpoenas
As noted, Rule 34(a) provides that parties may request items in another party’s “possession, custody, or control.” With documents in the cloud, outside servers, social media, and other ESI, there may be questions of what is actually in the producing party’s possession, custody, or control.
Before seeking ESI from a third party, determine whether that party controls the materials you seek. Even if materials are technically in the possession or custody of a third-party service provider, a party to the case may still have control over the materials through its contract with the provider.
Proportionality and specificity are crucial for third-party subpoenas. Fed. R. Civ. P. 45 requires that, “A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”
In short, a party issuing a subpoena should be prepared to discuss the method of production, costs, and tailoring of the requests with the third party.
Common ediscovery challenges
Here are some current ediscovery and ESI challenges and how they might be addressed.
Some ESI, like encrypted messages or posts on Snapchat, are meant to be ephemeral. But, as the Billy Crystal character Miracle Max noted in The Princess Bride, “There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive.”
Many ephemeral or deleted materials are more on the “mostly dead” side of the spectrum: still accessible, but difficult to access.
For example, such materials may no longer be in the possession, custody, or control of the person or company who initially generated them, but are stored by a service provider such as a social media platform.
For the most part, a third party has no duty to preserve materials before receiving a subpoena, even if it is aware of the litigation. If possible, proceed with a subpoena as soon as you are aware that the ESI exists and is not discoverable from a party to the case.
On the other hand, a party’s obligation to preserve potentially discoverable materials includes even ephemeral materials. If your client reasonably anticipates litigation, inform document custodians promptly of their duty to maintain ESI, even in fleeting formats.
Whether ephemeral materials are discoverable will depend on the importance of those materials to the case, balanced against the burden of retrieving them.
Document retention policies
Attorneys also need to understand the manner in which company information is transmitted and stored in the ordinary course of business.
Here, look at any document retention policy the company has. The Association of Corporate Counsel recently published an article on tips for creating an effective document retention policy. Among other suggestions:
- Companies should bring multiple stakeholders into the discussion
- Include media and technology like mobile phones, personal devices, and chats
- While the policy should account for litigation holds, it should not retain information indefinitely
- Retention policies also may vary by industry, such as financial institutions
Form of production
For some types of ESI, like messaging apps like Teams and Slack, production of documents might be cumbersome. Traditional discovery simply wasn’t designed for the format in which these technologies were stored.
Discuss this with opposing counsel as soon as possible.
Educating legal teams
Although attorneys must educate themselves on ediscovery issues, many lawyers resist navigating technical developments.
Why are lawyers resistant to AI? Hear from the experts in this episode of Between Two Firms.
In addition, the junior attorneys who are often involved in reviewing the documents (and who may have a greater fluency with ESI platforms) may not be the ones negotiating with opposing counsel about ediscovery matters – nor selecting the technology used in ediscovery.
Attorneys at every level, including in-house and outside counsel, bear the responsibility of ensuring compliance with the rules and effective advocacy for clients. Have ongoing conversations about technology, and include multiple members of the legal and tech teams. Your discovery provider should also be available to explain issues you may encounter in ediscovery.
Recent years have brought ever-increasing attention to privacy concerns, which should be considered in the context of retaining and producing documents. For example, a litigation hold pertaining to specific employees in the U.S. might be considered routine, but may trigger privacy concerns from counsel in Europe if European employees are included in the hold.
Courts have long permitted parties to keep data confidential for reasons that may be analogous to privacy concerns, like trade secrets and company financial data. Further, courts have weighed privacy concerns in the context of proportionality and burden. For example, in a 2021 discovery decision relating to the FitBit data of a plaintiff in a case against an artificial hip manufacturer, the court found the court referenced the plaintiff’s privacy concerns but ordered that data be produced: “Considering the liberal discovery rules, minimal burden of production, and limited privacy risks, this Court will require production of a portion of the Fitbit data.” Bartis v. Biomet, Inc., Case No. 4:13-CV-00657-JAR, E.D. Mo. (May 24, 2021) (emphasis added).
For now, privacy concerns don’t necessarily rule the day in the ediscovery context – but do pay attention to these considerations when seeking personal information.
Note: Whether privacy laws are applicable to discovery is complex and can vary in state and federal courts. According to Bloomberg Law, 12 states now have comprehensive data privacy laws in effect, and others are in the works.
Tools for ediscovery
AI and machine learning tools are not new to ediscovery, and generative AI opens up even more possibilities for ediscovery platforms to save attorney hours and client cost.
Considering procuring an ediscovery platform? Here’s what to look for.
What to look for in an ediscovery platform
- All-in-one: Rather than using multiple service providers with piecemeal solutions, look for a single provider with expertise in the entire process.
- Billing: Consider how the service is billed, such as subscription fees, per volume of documents, or per user.
- AI: In ediscovery, not all AI is created equally. Look for a platform that can draw out the most responsive documents to cut search time, and that also uses generative AI to better search, categorize, and summarize documents. Some platforms also apply AI learning across cases for companies frequently involved in litigation. Consider ethical obligations as well, such as whether the platform will limit the universe of training materials to the firm or client.
- User friendliness: Consider ease of searching and usability of search results. Many current ediscovery platforms include tools like search visualization to give attorneys an at-a-glance snapshot of common terms, appearance of terms over time, and more. Ask for a demonstration and to see whether search results, and platform features in general, are intuitive and meet the requirements of your team.
- Support personnel: Be sure the platform’s team has experience in litigation like yours and can help to educate your attorneys and staff on tech standards, as well as work seamlessly with the client’s IT personnel.
- Holding up to challenge: Be careful that the search and review of documents is robust enough to hold up to court scrutiny if production methods are questioned. Ask the platform how attorneys are able to document their work.
While there are many legal and logistical challenges in ediscovery, it is possible to streamline the process and right-size ediscovery to fit your litigation needs.
Related resource: How to Use Integrated AI to Speed Up Your Ediscovery Practice 💡
Do better ediscovery with DISCO
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For more information on how DISCO can help with your ediscovery, request a demo.