Monthly Installment: Cybercontrols

It is nearly impossible today to envision how any commercial litigation matter would not involve the discovery and production of electronically stored information (ESI) to support or refute a claim. Traditionally, the requesting party has always been reliant upon the producing party to identify, locate, and review responsive ESI in a good faith effort to produce relevant information. However, the duty to produce all relevant ESI is not as simple and straight forward as it sounds.

… it is more likely than ever that both plaintiffs and defendants will have to produce non-privileged, responsive electronic data in the course of their dispute, so attorneys must learn to preserve electronic data stored by clients while formulating new, more effective ways to coax that same information from their opponents …

Among the may emerging concerns regarding ESI are the increased attention to the producing party’s duty to quickly identify all potential areas of relevant ESI and implementation of an effective preservation hold to safeguard volatile data from inadvertent spoliation. A requesting party needs to be skeptical from the very start as to whether one’s adversary has a full grasp of the necessary precautions and procedures necessary to effect a proper preservation hold on the various types of ESI relevant to the case. This skepticism must be rooted with a firm understanding and appreciation of the possibility that there may be many types of relevant ESI stored on a myriad of devices that need to be identified and secured. Some of this relevant ESI may go beyond just a list of certain documents or e-mail messages such as the metadata associated with each of these items. Even before the producing party begins their discovery search and review for relevant ESI, they must employ effective procedures to preserve the original metadata as the mere opening and/or copying of those files will alter the metadata long before it is even produced.

Practical courtroom experience has certainly demonstrated that the simplistic generalization that plaintiffs fall into the requesting party category and that defendants are the producing party is not realistic. In a majority of commercial litigation matters, both parties in a dispute will find themselves having to produce and request non-privileged, responsive ESI. What has changed is that attorneys must now devote greater attention to the challenges of implementing effective preservation procedures to all relevant ESI prior to pre-production review while at the same time being ever mindful of the abundance of potential ESI to be specifically requested from one’s opponent all in the same case.

With help, attorneys will be able to safeguard their client’s from avoidable spoliation sanctions while at the same time conducting effective discovery requests that will contribute to a favorable outcome. The solution to conducting successful electronic discovery is identifying who and when to ask for help in dealing with ESI in a case.

With the new FRCP Rules in effect since last December, the necessity to be prepared for the pretrial meet-and-confer session for both parties to discuss the particulars involved in electronic discovery (if applicable) is clearly spelled out in the Rule 16 (b) and Rule 26 (f) amendments. This means that lawyers need to be preparing for electronic discovery at the very onset of a lawsuit.

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