Discovery as we know it is on the brink of monumental changes that will forever impact and alter the way litigation is conducted.
With the ushering in of the electronic age, we have seen changes in the way we file documents and get information. Federal courts and bankruptcy courts were pioneers in electronic filing, and now the overwhelming majority of documents are required to be filed electronically in these courts. State courts have now begun to emulate their federal counterparts and have taken up e-filing and e-correspondence.
The courts and lawyers have more direct interaction as a result of the electronic age. E-discovery is the most recent concept to arrive on the legal scene, and it is quickly making its mark on both the federal and state statutory landscapes.
In December 2006, the Federal Rules of Civil Procedure were amended to address issues related to e-discovery. Last year has been described by many practitioners in the federal system as the year in which litigation and discovery were forever changed.
With the changes to Federal Rules of Civil Procedure, attorneys are now required to discuss in detail the discovery of electronically stored information within the first 60 to 90 days. The courts are now requiring that electronically stored information be made a part of the discussions at the initial case-management conference.
The federal rule changes have even taken it a step further and have laid out what the obligations of the parties are as they relate to electronic discovery. The amended rules provide that only reasonably accessible sources of electronically stored discovery need to be produced to comply with the intent of the statute.
Any other source that is not reasonably accessible must only be identified to the opposing party. It will then be up to the opposing party to determine if it wishes to pursue the discovery, at which time the rule provides that there may be a cost-shifting – one that puts the onus on the opposing party to pay for any additional means outside the reasonably accessible methods.
The electronic era of discovery and the amendment to the rules have opened the door for various other legal issues. Some of the questions the courts now must address are: How is this overwhelming amount of data to be preserved? How much and what types of data must a company keep? How do tape backups, databases and even metadata play into the overall discovery process? What happens if you inadvertently receive privileged or confidential information through e-discovery?
Legislators and the courts are attempting to answer these questions either through advisory opinions or from the bench. It seems that the courts are taking the proverbial case-by-case, fact-specific approach as they travel slowly on this new journey down the information superhighway.
The courts are slowly embracing this new way of litigating and are beginning to more strictly interpret and enforce e-discovery violations and sanction violators. The consequences can prove to be severe to clients who violate the new rules.
In the case of Zubulake v. UBS Warburg, the judge set out remedies ranging from cost-shifting to adverse-inference jury instructions against those who fail to properly maintain, spoil or dispose of electronic evidence.
The courts point to relevance and intent as two major factors they will consider prior to determining the appropriate remedy. In Zublake, the court found that – as sanctions for the tardy production of relevant e-mails – UBS must bear the burden of paying the costs of additional depositions for the limited purpose of inquiring into issues raised by the destruction of evidence and any newly discovered e-mails.
In the follow-on case to Zublake, the court explicitly addressed counsel's obligations to ensure that relevant information is preserved by giving clear instructions to its clients to preserve it. The court further found that counsel is required to take steps beyond mere notification to all employees of a litigation hold and simply expect that the party would keep and produce all relevant documentation.
Counsel has a duty to take reasonable, affirmative steps to monitor compliance in order to ensure that all sources of relevant information are found and produced, if requested.
So, where do the changes in statutory and common law leave attorneys and their clients today? All law firms should establish, initiate, organize, monitor and manage an e-discovery management plan.
With e-documents created by businesses now exceeding the one trillion-per-year mark, the risk of sanctioning is high. The e-discovery management plan should include a map of all data passing through databases. By mapping or cataloguing a company's records, data can easily be broken down, and documents can be produced more quickly and inexpensively upon request.
It is vital to conceive a plan and stick to it. If not, clients and their cases may become casualties of the information superhighway – and the courtroom.
Jay Kendall is an attorney practicing in the Nashville, Tenn., office of Wilson & Associates PLLC. His areas of practice include bankruptcy and general litigation, and he can be reached at email@example.com.