Ethics and Amended Federal Rule 26
The new federal rule 26(a)(1)(B), effective Dec.1, 2006, requires parties to provide, without discovery request, “a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession custody, and control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.”
The commentary indicates that “The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.” FRCP, Comments to Amended Rule 26, subdivision (b)(2).
Although such automatic disclosure isn’t required in state courts, it is reasonable to assume that the various jurisdictions will rule that this type of discovery is appropriate if requested. It is important to put the other side of litigation under a discovery request, or at least written notice, before the electronic data disappears.
The first and foremost issue before us is whether those seeking discovery are doing a complete and adequate job representing our clients. Lazy omission in preparing for litigation can be as wrong as an intentional ethical violation, and much more prevalent. Electronic information has been the 800 pound Gorilla in the living room that most litigators have ignored. It is a different world than the one we learned while in law school or in early years of practice. Even recent graduates receive little training to match the challenges of the digital age.
Let me first confess that I am one of those attorneys who did not have the technical background to face the new challenges of today’s discovery efforts. This puts me in a unique position to write to others playing catch-up. Much of the technical information I will be departing to you is basic. Additionally I must give credit to Craig Ball, a Texas Trial Lawyer from Austin, Texas
The problem the requesting attorney will most assuredly encounter is the opposing counsel asking his non-tech company rep, “We have any electronic information?” To which he will receive and pass on to you a negative response. Your reaction should be: “Oh really?”
Did you make a reasonable search for emails? Did you conduct a good faith search in
1. Each employee’s computers, both desk top and lap top
2. The department and company server
3. The mirror server
4. Backup for the server
5. Computers of the recipients of the emails
6. Emails residing in active files
7. Emails stored with local providers
8. Network repositories
9. Remote servers
10. Copies to third-party systems
11. Removable media
12. Achieved email
13. Email stored in other formats?
The list goes on. One of the ethical questions is: When have you spent more time and money than could reasonably yield results searching each possible pocket of information? This is an especially sensitive question when is working on a contingent or fixed rate fee. An expert can save a great deal of time and money with suggestions of format and search capabilities.
Think of other electronically stored data and where it might be stored:
1. PowerPoint presentations
2. Cell phones
3. Blackberries
4. Voice mail
5. Instant messaging
6. Databases
7. Word processing documents
8. Digital cameras
9. CD
10. DVD or other video storage
11. PDF files
12. Spread sheets
The list is endless.
Once this information has been gathered, then the issue becomes: Is there data about the data being produced? The DNA of the electronic information is “metadata”. Depending upon how careful the opposing party has been to keep its electronically stored data purged of metadata and the expertise of you or your forensic data expert, there can be much more relevant information in what does not appear on the printed hard copy. For instance, a document sent back and forth among several employees of a firm could receive many edits and comments which are accepted or excluded from the final draft. The electronic version may well still have the information as to all excluded sections, amendments or comments and the identity of the authors of each. Imagine the possible ramifications.
A keystone to the electronic discovery practice is the Preservation Demand letter to the opponent. Although, in federal court, the discovery is automatic, a letter should be sent to put the parties under an obligation to not purge hidden information even before the discovery is served. This kills that twilight time when the potential party could argue that it was merely instigating a new company policy of purging its electronic files and was not on notice of a lawsuit or the need to preserve metadata. The letter should carefully list the type of electronically stored data and the data systems or archives you will be seeking to review and demand that the company guard against deletion by any of its employees or agents. In this regard, demand that routine destruction should also be stopped. Your letter should specifically refer to preservation of metadata. List specifically the categories of information and dates of inquiry you will be seeking. Imagine you are the judge at a later date trying to determine if the demand was reasonable and clear.
Please understand that this description of a preservation letter is not an inclusive check list and I recommend that you talk to an expert to develop a form letter that you can alter as you refine your discovery process and discover ways some will try to get around their obligation to respond in good faith to your notice.
There are many ethical questions that arise from this technological advance. For instance, what if a client wants his file back? He owns the file and has the absolute right to all of its contents. However, since many offices are creating virtual e-files, is he entitled to the electronic version with all its metadata? What about the emails among staff or attorneys about the client that are not part of the litigation file? If an attorney receives the e-files and discovers metadata, can it be purged after discovery has begun or after a notice letter has been sent prior to litigation? What if an attorney receiving e-discovery realizes privileged information exists in the metadata? The list of thorny questions is never-ending.
