The Impact of Electronic Data upon an Attorney’s client†
Terry L.
Hill
Jennifer S.
Johnson
I.
Introduction
Technological
advancements within the past decade have affected virtually every aspect of
modern life. Many of these effects are
positive. People have greater knowledge,
and they can access the sources of that knowledge more quickly. In addition, businesses function more
efficiently, thereby increasing productivity and
creativity. The processes and procedures
of today’s institutions are more streamlined and more easily manipulated by
those who need them. Communication, both
on an individual and a global level, has become sophisticated and
instantaneous. While the accolades could
continue, fairness demands an admission that today’s high-tech gadgets and
computerized operations also create consequences that are not so desirable.
One of the
problem areas associated with the intense influx of electronic tools is the
current struggle within the legal profession to adapt its practices to this new
Technology Age. While the advancements
created by computers are beneficial to attorneys and their clients in many
ways, they also create burdens for counselors who are professionally
responsible for the impact they have on legal relationships and, specifically,
litigation. Those burdens can include:
These
burdens have compromised the practice environment for litigation attorneys and
overwhelmed them with electronic discovery demands. Thus, this article will
examine some of the most troublesome issues confronting the legal profession
with regard to electronic document production:
1.
inadvertent waiver of privilege;
2.
electronic document management;
3.
preservation of electronic information; and
4.
the cost
allocation of electronic document production.
In order to discuss these issues
knowledgeably, however, it is necessary first to establish the currently
existing framework of the legal duty to produce electronic documents and the
potential scope of that duty.
II.
Duty to Produce Electronic Information
Federal
Rule of Civil Procedure 26 was amended in 1993 to create a mandatory disclosure
requirement. Although the amended rule
initially was adopted by most federal district courts, a provision was adopted
in December 2000 that compelled all federal district courts to comply with the
mandatory disclosure rule.[1] This amendment requires attorneys to produce
certain materials relevant to issues in the pending litigation without a
specific discovery request. Instead of
waiting for a list of limited items from opposing counsel, attorneys now must
conduct a broad, general review of all the information held by their clients in
order to locate those items that are relevant to the dispute. Significantly, that review must include
electronic evidence as well as paper documents.
Federal
Rule 26(a)(1) states in pertinent part:
(1) Initial Disclosures. Except in categories of proceedings specified
in Rule 26(a)(1)(E) or to the extent otherwise stipulated or directed by order,
a party must, without awaiting a discovery request, provide to other parties:
. . . .
(B) a copy
of, or a description by category and location of, all documents, data
compilations, and tangible things that are in the possession, custody, or
control of the party and that the disclosing party may use to support its
claims or defenses, unless solely for impeachment[.][2]
The
potential penalties for failing to comply with this disclosure requirement are
substantial. Not only will a party
forfeit the right to use the evidence that the party failed to disclose,[3]
the party also may suffer monetary sanctions[4]
or even the loss of a judgment.[5]
While
most attorneys are familiar with the mandatory disclosure requirements in some
form, a smaller number have made the connection between the rule and the
computer systems of their clients.
Attorneys are accustomed to examining paper documents during discovery;
yet almost every paper document today derives from an electronic format. Electronic documents, whether word processed
items or databases, or data stored within the computer system itself, consist
of any information that is communicated and stored electronically. The Civil Rules Advisory Committee was aware
of this expanded document concept as early as 1970, when it amended Federal
Rule 34 to include “data compilations” in the list of items that might be
requested by litigating parties.[6] Since that amendment, courts consistently
have interpreted the term “document” to include information that is stored
electronically, and no case since 1970 has interpreted the term “document” to
exclude from discovery any form of electronic data. One court went so far as to say that “it is
black letter law that computerized data is discoverable if relevant.”[7]
This
development creates a new twist for attorneys prepared to review and produce
client materials pursuant to Rule 26(a)(1)(B): filing cabinet drawers are no
longer the place to begin. Today, the
vast majority of business records – including contracts, financial data, and
correspondence – are stored within computer systems. Many attorneys, however, still consider
themselves technically illiterate and do not understand how or where to look
for this information. Some are frustrated
by the sheer volume of documents that may exist, failing to produce anything
not evident after a cursory review.
Nevertheless, courts are clear that the duty imposed by Rule 26 includes
the production of materials that attorneys “should have known” existed.[8] It is likely that this frustration will
intensify as attorneys become aware of the particularly incriminating nature of
electronic evidence. The lack of “hard
evidence” in paper form can lull some clients into a false sense of security
with regard to the existence of electronic data, and e-mail messages sometimes
can be downright dangerous for litigation strategy.
The
unique nature of e-mail suggests a potential litigation landmine for many
reasons: (1) the sheer quantity of
e-mail messages produced by clients increases the chance that one of them will
contain material relevant to a disputed legal matter; (2) the content of e-mail
messages generally is more casual and more likely to contain information
unavailable from other sources, and (3) an e-mail message is actually very
difficult to destroy. In addition, even
the general public is aware of the “smoking guns” discovered in e-mail messages
in high-profile cases such as Iran-Contra, the Salt Lake City Olympic bid
scandal, the Microsoft antitrust case, the impeachment of President Clinton,
and the collapse of Enron Corporation.
Nor
is it good enough simply to review and produce the paper copies provided by
one’s client. Recent court decisions
have affirmed that attorneys not only have a duty to thoroughly investigate and
disclose potentially relevant documents,[9] they also must disclose whether or not those
documents are available in electronic form.[10] Failures regarding the adequate production of
electronic information can result in discovery sanctions.[11] Regardless of the concerns expressed by the
legal community, the duty to produce relevant information, which very probably
exists in electronic form, is clear.
III.
Scope of Discovery of Electronic Information
Rules
26 to 37 of the Federal Rules of Civil Procedure govern discovery procedures in
federal civil actions. In theory, they
enable parties to obtain all the information necessary to prepare for trial and
to resolve their legal disputes. These
rules were uniquely formulated to allow for broad searches in order to gain the
“fullest possible knowledge of the issues and facts before trial.”[12] For example, Rule 34(a) allows any party to
serve on any other party a request:
to produce
and permit the party making the request, or someone acting on the requestor’s
behalf, to inspect and copy, any designated documents (including writings,
drawings, graphs, charts, photographs, phone records, and other data
compilations from which information can be obtained, translated, if necessary,
by the respondent through detection devices into reasonably usable form), or to
inspect and copy, test, or sample any tangible things which constitute or
contain matters within the scope of Rule 26(b) and which are in the possession,
custody or control of the party upon whom the request is served[.][13]
The Notes to the 1970 Amendment to
Rule 34 explain in part:
The inclusive description of
“documents” is revised to accord with changing technology. It makes clear that Rule 34 applies to
electronic data compilations from which information can be obtained only with
the use of detection devices, and that when the data can as a practical matter
be made usable by the discovering party only through respondent’s devices,
respondent may be required to use [its] devices to translate the data into
usable form. In many instances, this
means that respondent will have to supply a print-out of computer data. . . .
Similarly, if the discovering party needs to check the electronic source itself,
the court may protect respondent with respect to preservation of [its] records,
confidentiality of nondiscoverable matters, and costs.[14]
Rule
34(b) supplies the procedure for the discovery of documents:
The request
shall set forth, either by individual item or by category, the items to be inspected,
and describe each with reasonable particularity. The request shall specify a reasonable time,
place, and manner of making the inspection and performing the related
acts. Without leave of court or written
stipulation, a request may not be served before the time specified in Rule
26(d).
The party upon whom the request is served shall serve a
written response within 30 days after the service of the request. A shorter or longer time may be directed by
the court or, in the absence of such an order, agreed to in writing by the
parties, subject to Rule 29. The
response shall state, with respect to each item or category, that inspection
and related activities will be permitted as requested, unless the request is objected
to, in which event the reasons for the objection shall be stated. If objection is made to part of an item or
category, the part shall be specified and inspection permitted of the remaining
parts. The party submitting the request
may move for an order under Rule 37(a) with respect to any objection to or
other failure to respond to the request or any part thereof, or any failure to
permit inspection as requested.
A party who produces documents for inspection shall produce
them as they are kept in the usual course of business or shall organize and
label them to correspond with the categories in the request.[15]
In combination, Rule 26(b)(1)
defines the general, broad scope of discoverable information:
Parties may
obtain discovery regarding any matter, not privileged, that is relevant to the
claim or defense of any party, including the existence, description, nature,
custody, condition, and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of any
discoverable matter. For good cause, the
court may order discovery of any matter relevant to the subject matter involved
in the action. Relevant information need
not be admissible at the trial if the discovery appears reasonably calculated
to lead to the discovery of admissible evidence. All discovery is subject to the limitations
imposed by Rule 26(b)(2)(i), (ii), and (iii).[16]
Although these rules initially
allow the parties to cast enormous nets in order to fish for data, it must be
noted that even these broad parameters demand that the information sought be
relevant to the issues involved in the litigation. Therefore, relevance should be considered the
first, albeit most overlooked, limitation on the scope of electronic discovery.
As
noted above, Rule 34 governs the discovery of electronic information in the
same way that it governs any other kind of information, and it allows broad
access to relevant items. However, the
rules also recognize that there are additional limits on how far discovery
should reach. For example, matters
protected by the attorney-client privilege and the work product doctrine are
excluded from the scope of discovery by Rules 26(b)(1) and 26(d). In addition, Rule 26(b)(2) includes a
proportionality limitation that permits the court to intervene when “the burden
or expense of the proposed discovery outweighs its likely benefit.”[17] This judicial power exists whether or not a
party has applied for a protective order or filed a motion to compel, allowing
a judge to establish specific discovery procedures or set specific limitations
before a potential problem becomes a nightmare.
Once electronic information is requested under Rule 34, the responding
party faces two threshold questions that could limit or completely preclude
production of the requested items: (1) is the information discoverable under
Rule 26(b)(2), and (2) is the information privileged? While an inquiry about whether certain
electronic documents contain privileged information is easily navigated by most
legal professionals (though such an inquiry may require enormous amounts of
time, effort, and expense), a Rule 26(b)(2) inquiry demands more attention in
the context of electronic media.
Rule
26(b)(2) provides in relevant part:
The
frequency or extent of use of the discovery methods otherwise permitted under
these rules and by any local rule shall be limited by the court if it
determines that: (i) the discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is more convenient,
less burdensome, or less expensive; (ii) the party seeking discovery has had
ample opportunity by discovery in the action to obtain the information sought;
or (iii) the burden or expense of the proposed discovery outweighs its likely
benefit, taking into account the needs of the case, the amount in controversy,
the parties’ resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in resolving the
issues. The court may act upon its own
initiative after reasonable notice or pursuant to a motion under Rule 26(c).[18]
The proportionality test of Rule
26(b)(2)(iii) is particularly applicable to requests for the production of
electronic information simply because the nature of electronic information can
range from words typed onto a computer screen to coded data stored on magnetic
tapes that can be retrieved only through a complicated and expensive forensic
process.
When
discovery was concerned primarily with paper documents, attorneys had to search
through central filing devices, storage boxes, and even people’s desks. With electronic documents, however, the
number of places to look has increased exponentially. This increase is necessitated by the variety
of forms that electronic data can assume.
In a very basic sense, electronic data can include any of the following:
1.
active data,
2.
metadata or hidden data,
3.
databases and spreadsheets,
4.
system data,
5.
“deleted” data,
6.
ghost or residual data, or
7.
legacy data.
Active
data is information created intentionally and with an understanding that it is
easily retrievable and available in the ordinary course of business.[19] Such data includes word processing documents
and saved e-mail messages.
Metadata
is information embedded in an electronic file about that file, such as the date
of creation, author, editing history, and source. This information very seldom appears on a
computer screen or in a printed version of the document. Instead, it is often
created automatically by the software the author is using, without the author’s
knowledge or intent.
Databases
and spreadsheets are collections of information that have no structure or
meaning without the metadata. They are
the structure behind what may be called a “non-document document,” or a
document that is never evidenced in a permanent form. These items are not really documents at all
but electronic processes, most frequently used in the ordinary course of
business. For example, a banker might
make a loan decision after accessing a number of databases containing
information such as an applicant’s credit history, tax records, insurance
claims, and police reports, to which the banker then applies a risk assessment
program in order to calculate the applicant’s risk. The banker’s decision will be based on a
large analysis that is never reduced to one computer file or printed on
paper. Another example involves a
transportation ticket that is purchased electronically. The traveler’s purchase, travel information,
payment information, etc., are recorded in a database that exists somewhere,
but the collected data entered by the traveler will disappear when the
transaction is completed. A request for
the traveler’s “e-ticket” essentially is a request for a business process that
cannot be reduced to a simple document.
System
data is information generated by the computer system itself about a user’s
activity on the computer or network.[20] This information is created without the
user’s knowledge. It can include records detailing when the user logged on or
off, which software applications or passwords were used, which web sites were
visited, and which documents were printed or faxed.
Deleted
data is a misnomer for electronic information that has been renamed and
“Ghost”
or residual data is random data chosen by a computer to consume leftover space
in the sectors of a hard drive.[21] This data can be anything that has ever been
created on a computer system, including information that its author never
intended to save.
Finally,
legacy data is information that has been saved, although it was created on an
obsolete computer system using obsolete operating and application software.[22] Accessing this information would require
incredible effort and cost.
In
addition to these categories, most businesses store all of their computer
information on backup tapes as a security mechanism. The tapes are generally recycled on a regular
basis so that existing records are replaced with new records. These tapes essentially take a photograph of
every piece of data existing within a computer system at a particular moment,
potentially allowing any piece of that data to be retrieved in the event of a
disaster involving the system itself.
Retrieval, however, requires that the backup tapes be restored to a
workable system and then converted into a format that will allow individual
files to be organized, searched, and read.
This process is difficult, expensive, and lengthy. Yet all of the data described above can be
included in a request for production of electronic documents.
The
challenge presented by Rule 26(b)(2) requires the parties to determine when the
potential benefit of a request is outweighed by the burden of data
production. It is conceivable, of
course, that some scenario exists in which any of the information above could
be considered important enough to the litigation to make the effort of
production worthwhile. In a majority of
the cases, however, the reasonable limitations invoked by Rule 26(b)(2) will
curtail unreasonable requests. It should
also be noted that the list generated above enumerates types of electronic data
in an order that ranges from easy to produce to insurmountably burdensome.
Therefore, as the list progresses, so does the difficulty in surviving the Rule
26(b)(2) proportionality test.
For
example, with regard to many discovery requests for deleted e-mails, it
certainly can be argued that the scope of requested information is too
expansive. In a way, this situation is
analogous to a request for paper correspondence that was received, read, wadded
into a ball, and thrown into the garbage several weeks prior to any discovery
request. The idea that such a document
could be discovered by a litigation opponent and appear as evidence in a civil
case is laughable, but because it is actually possible and even foreseeable
with regard to an e-mail message, no one should be amused.
Because
of the uncertainty involved in whether or not a particular electronic discovery
request will be enforced by a court of law, some have argued that the
appropriate scope of electronic discovery should be defined by a legal
rule. Texas has attempted to do just
that by adopting Rule 196.4 of its Rules of Civil Procedure. This rule reads as follows:
To obtain discovery of data or
information that exists in electronic or magnetic form, the requesting party
must specifically request production of electronic or magnetic data and specify
the form in which the requesting party wants it produced. The responding party must produce the
electronic or magnetic data that is responsive to the request and is reasonably
available to the responding party in its ordinary course of business. If the responding party cannot – through
reasonable efforts – retrieve the data or information requested or produce it
in the form requested, the responding party must state an objection complying
with these rules. If the court orders
the responding party to comply with the request, the court must also order that
the requesting party pay the reasonable expenses of any extraordinary steps
required to retrieve and produce the information.[23]
No Texas court has yet construed
which electronic data categories are “reasonably available . . . in [the]
ordinary course of business,”[24]
but counsel might presume that the restoration of backup tapes and deleted data
would be excluded from such “reasonable efforts.” At any rate, the Texas rule clearly intends
to restrict the scope of electronic discovery on the basis of accessibility and
cost.
Some
courts have used the language of Rule 26(b)(2) as the basis for ruling that
parties need not produce archived or deleted materials.[25] In response, the Advisory Committee amended
Rule 26(b)(1) in 2000 by adding a final sentence: “All discovery is subject to
the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).”[26] The Advisory Committee Notes explain this
addition:
[A]
sentence has been added calling attention to the limitations of subdivision
(b)(2)(i), (ii), and (iii). These
limitations apply to discovery that is otherwise within the scope of
subdivision (b)(1). The Committee has
been told repeatedly that courts have not implemented these limitations with
the vigor that was contemplated. This
otherwise redundant cross-reference has been added to emphasize the need for
active judicial use of subdivision (b)(2) to control excessive discovery.[27]
The limitations of Rule 26(b)(2) on
the scope of discovery have been used effectively by courts to specifically
tailor or deny electronic discovery requests.[28]
Distinct
from the Rule 26(b)(2) analysis, the nature of the electronic information
requested in some situations may be such that its provision would divulge
important proprietary assets -- a matter both detrimental to the respondent and
unauthorized by Rule 34. For example, a
request might be made for all documents relating to the time and location of
certain sales transactions entered by a party.
While the actual information regarding the time and location of those
sales may be discoverable, the respondent might choose to keep that information
stored in a computerized data base that also includes customer data. Not only is the respondent faced with a
request that could expose valuable trade secrets, the respondent also is being
compelled to disclose to a potential competitor its method for compiling
customer data. In this setting, the
database itself could represent a trade secret held by the respondent. As a result of this Rule 34 request, which
asks for electronic information beyond the proper scope of discovery, the
respondent must seek the protection of Rule 26(c).
IV.
Inadvertent Waiver of Privilege
Within
the context of a request for the production of electronic information, the
attorney faces another pitfall connected to certain documents. This pitfall concerns the inadvertent waiver
of privilege. It can occur as a mistake
in the process of document production or as a mistake in the electronic
distribution of information.
A. Waiver by Inadvertent Production
Electronic
data is protected by the same legal privileges that apply to the discovery of
paper evidence, including the attorney-client privilege and the work product
doctrine.[29] These and other traditional privileges were
created to protect certain special relationships and to encourage greater
communication within those relationships.[30]
While
attorneys have an ethical duty to maintain client confidentiality, the
attorney-client privilege itself is held by the client. This privilege allows
the client to protect completely the communications that exist between the
client and the client’s attorney. The
protection of this privilege extends to documents that contain attorney-client
communications, as well as those documents prepared for the purpose of seeking
an attorney’s advice. The privilege,
however, is deemed to have been waived if the confidential communication is
disclosed or somehow revealed to a third party, which can be done intentionally
or inadvertently.[31] Once the privilege has been waived, it cannot
later be invoked by the attorney.
1.
Scope of the Waiver
Some
case law holds that a producing party can waive his or her right to assert the
attorney-client privilege if a document is produced by mistake during
discovery.[32] In some cases, that mistake could waive the
entire subject matter covered by the item produced.[33] Therefore, once a privileged document has
been disclosed, “all communications between the same attorney and the same
client on the same subject” that occurred before the time of disclosure would
lose protection of the privilege.[34] (It should be noted that such a harsh penalty
does not apply to information covered by the work product doctrine, however.[35]) Thus, when a jurisdiction follows this broad
“mistake” rule, one simple error could eventuate in the waiver of a large
quantity of otherwise-protected communications.
On
the other end of the spectrum, another trend rejects the subject matter rule
within the context of inadvertent waiver of the attorney-client privilege. Cases occupying this trend restrict the scope
of the waiver to the communication at issue.[36] Because there is no case law discussing a
waiver of privilege through the inadvertent release of electronic information, particularly in an e-mail document, it is
unclear how far such a waiver might extend.
2.
Judicial Approaches to Inadvertent Waiver
The
courts currently are divided as to whether or not the inadvertent disclosure of
electronic information waives the attorney-client privilege. Essentially, three approaches appear to
govern this issue: the strict approach, the lenient approach, and the
case-by-case approach.
The
strict view holds that any disclosure
of privileged information, whether inadvertent or not, constitutes a waiver of
the privilege. This approach invokes the
policy underlying the rule of privilege and argues that the rule is useless if
its policy is ignored. The court in FDIC v. Singh[37]
explained:
The purpose
of the privilege is to protect the confidences of clients so they may freely
discuss their legal concerns with counsel.
However, when a document is disclosed, even inadvertently, it is no
longer held in confidence despite the intentions of the party and thus, “the
privilege is lost ‘even if the disclosure is inadvertent.’”[38]
In the case of Underwater Storage, Inc. v. United States Rubber Co.,[39]
the court likewise held that the inadvertent disclosure of a privileged
document by an attorney waived the privilege, stating: “[o]nce the document was
produced for inspection, it entered the public domain. Its confidentiality was breached thereby
destroying the basis for the continued existence of the privilege.”[40]
An
obvious advantage to this approach is its uniformity in application: no one
need guess the consequence for an inadvertent disclosure. Likewise, courts applying this strict rule
maintain that it will prompt attorneys to secure covered information by taking
necessary precautions. However, even
under the best of circumstances, human beings make mistakes, and regardless of
the precautions taken, a mistaken disclosure will precipitate waiver. In addition, it seems harsh to punish clients
for what may be nothing more than clerical error.
The
second approach affords greater leniency, invoking a limited waiver test. This theory accepts that the waiver must be
intentional and urges that the concept of inadvertent waiver presumes an
inherent contradiction.[41] Since the client actually holds the
privilege, the client should not be vulnerable to the possibility of clerical
mistake by its attorney. Therefore,
jurisdictions that adopt this test generally will find no waiver of privilege
when the disclosure of confidential information is inadvertent. However, critics of this approach argue that
it provides no incentive for attorneys to carefully guard a client’s
communications.[42]
The
trend adopted by a majority of courts when determining whether an inadvertent
disclosure results in waiver continues to espouse a case-by-case approach that
employs a multi-factor balancing test.
This test usually includes some form of the following factors:
(1) the
reasonableness of the precautions taken to prevent inadvertent disclosure in
view of the extent of the document production; (2) the number of inadvertent
disclosures; (3) the extent of the disclosure; (4) any delay and measure taken
to rectify the disclosure; and (5) whether the overriding interests of justice
would or would not be served by relieving a party of its error.[43]
Under this approach, a waiver of
confidential information essentially occurs only when a party fails to take
reasonable precautions in maintaining the privilege.[44] By measuring each case under a multi-factor
test, the disadvantages posed by the other two approaches are addressed: the result is more equitable, but attorneys
still must be diligent about protecting client communications. Despite these characteristics, however, this
approach has been criticized for its lack of predictability.[45] Because the analysis is limited to a
case-by-case application, it is difficult for parties to find and use
precedent, and attorneys are without guidance about governing protocol. In addition, this approach may prompt
additional litigation over the many factors that must be defined and weighed
under a given set of facts.
3.
Recommendations for Change to Waiver Rules
Despite
its inherent predicaments, electronic storage and access has improved the
discovery process in many ways.
Documents specifically requested can be found easily using computerized
search tools, alleviating hours spent manually sifting through boxes of file
folders. Likewise, enormous collections
of information can be transferred to a computer disk in seconds and presented
to the requesting party, rather than copying each individual page, organizing
the production, and then transporting the results. These advantages, however, may be
overshadowed by the onerous nature of a “privilege review.” Because of existing uncertainty regarding the
permanence of an inadvertent waiver, attorneys are forced to review each
potentially responsive document manually in search of privileged information.
In
order to alleviate such uncertainty, courts might broaden the scope of inadvertent waiver protection. Currently, parties expend unreasonable
amounts of time and money providing a thorough review of requested electronic
documents in order to preclude the escape of protected information that might
jeopardize an entire category of evidence.
Much of this effort could be saved if the discovery rules provided for
automatic return of material that was inadvertently disclosed. If the nature of the allegedly protected
material was in dispute, relief could be sought from the court. Such a practice is already invoked by
agreement in complex litigation involving voluminous document production. In fact, the court in Rowe Entertainment, Inc. v. William Morris Agency, Inc.,[46]
recommended this procedure, although the opinion noted that the procedure could
not be required.
In
1999, Texas adopted a specific rule to address this problem. Rule 193.3(d) of the Texas Rules of Civil
Procedure reads as follows:
A party who
produces material or information without intending to waive a claim of
privilege does not waive that claim under these rules or the Rules of Evidence
if – within ten days or a shorter time ordered by the court, after the
producing party actually discovers that such production was made – the
producing party amends the response, identifying the material or information
produced and stating the privilege asserted.
If the producing party thus amends the response to assert a privilege,
the requesting party must promptly return the specified material or information
and any copies pending any ruling by the court denying the privilege.[47]
Comment 4 to Rule 193.3(d) further
explains its purpose:
Rule
193.3(d) is a new provision that allows a party to assert a claim of privilege
to material or information produced inadvertently without intending to waive
the privilege. The provision is commonly
used in complex cases to reduce costs and risks in large document
productions. The focus is on the intent
to waive the privilege, not the intent to produce the material or
information. A party who fails to
diligently screen documents before producing them does not waive a claim of
privilege. . . . The ten-day period (which may be shortened by the court)
allowed for an amended response does not run from the production of the
material or information but from the party’s first awareness of the mistake.[48]
Another
suggestion for reducing the strain caused by privilege review calls for
amending the rules and allowing a party who is producing electronic evidence to
reserve any privilege objection until trial.
Such a reservation would prevent the parties from having to examine
every document handed over during discovery, saving both time and money. While this reservation would seem to delay
the necessity of a privilege review until just before trial, the vast majority
of civil actions settle before then, obviating any delayed costs. Unfortunately, this suggestion seems to
create more problems than it solves. How
could the opponent prevent a party from using any privileged information, once
received, to seek additional, follow-up discovery? How could an opponent prevent a party from
sharing the privileged information with third parties? And how would any limitation of this sort be
enforced?
A
final approach advocates the adoption of a new minimum precautions rule. This standard would apply uniformly to cases
involving inadvertent disclosure of privileged information in confidential
e-mail communications and would measure the risks associated with each
questioned transmission. Courts would
then determine whether the appropriate security measure had been taken in light
of the corresponding risk.
4.
Procedures That Help Prevent Inadvertent Waivers
Several
courts have developed specific discovery protocols to help parties avoid the
inadvertent production of privileged information. In Playboy
Enterprises, Inc. v. Welles,[49]
the plaintiff requested access to the defendant’s computer in order to restore
any deleted e-mail messages that had not been overwritten. Obviously, the defendant objected. Looking to resolve the conflict, the court
allowed the plaintiff access to defendant’s computer, but grafted several
restrictions on the recovery process in order to protect any privileged
information. First, the plaintiff was
forced to provide statements from experts affirming a likelihood that the
deleted e-mails actually could be recovered and estimating the likelihood of
damage to the defendant’s computer system.
In addition, once a copy of the computer’s hard drive had been made, it
was first given to the defendant, who could review it and remove any e-mails
that were outside the scope of the discovery request.
In
Tulip Computers International B.V. v.
Dell Computer Corp.,[50]
the court allowed the plaintiff access to the e-mail records of the defendant’s
senior executives, implementing a procedure that the court described as “fair,
efficient, and reasonable:”[51]
(1) the defendant provided the e-mails in electronic form to the plaintiff’s
consultant, (2) the plaintiff’s consultant searched the e-mails using an agreed
upon list of search terms, (3) the e-mails containing those terms were given to
the defendant, and (4) the defendant reviewed the e-mails in order to ensure
that any relevant information was not privileged or confidential. As distinct from the procedure adopted in Rowe Entertainment, the neutral expert
in Tulip Computers International conducted
the discovery search, turning relevant files over to the attorneys for the
requesting party. Those attorneys then
selected the documents germane to their requests and presented them to the opposing
counsel, who could raise appropriate objections.
Sampling
is another method sometimes considered by the courts. This process generally involves turning over
to the requesting party a random sample of the information sought by the
discovery request in order to determine whether there is a reasonable
likelihood that a more extensive review will yield relevant documents.[52]
B. Waiver by Inadvertent Electronic
Distribution
Because
the nature of e-mail messaging allows the message to be forwarded easily or
copied to other parties, e-mail messages often can become part of a lengthy
string of communication that is constructed and read by a number of
participants. If any of these
participants is an attorney, the issue of attorney-client privilege becomes important. In that situation, if a participant alters
the subject of the original message somewhere along the way, the process of
forwarding or copying the altered e-mail may have the unintended consequence of
waiving any protective privilege that might have applied to the e-mail or its
attachments. In order to avoid this
possibility, attorneys carry an obligation to carefully monitor the information
that they include in e-mail messages and to instruct their clients to do so as
well.[53]
Another
danger posed by the electronic distribution of information involves expert
witnesses. The general work product rule
provides that its protection is “waived by disclosure of confidential
communications to expert witnesses.”[54] This proscription certainly applies to information
contained in an e-mail message that is forwarded or copied to an expert witness
by an attorney or client. Because e-mail
allows parties to communicate easily about business matters, including pending
litigation, it is foreseeable that expert witnesses might be copied in the
string of communications, thereby waiving either work product protection or the
privilege attached to attorney-client discussions.
V.
Electronic Document Management
Given
the inevitability of electronic document discovery and the problems associated
with it, an attorney should consider several matters in order to foresee and
forestall potential difficulties that will affect the attorney or the
client. Some of these matters, such as
company e-mail policies, serve to manage electronic document issues in a
pre-litigation context. Others, such as
Rule 26(f) meeting agendas, offer assistance for managing electronic document
issues in the midst of litigation.[55] All of these, however, can be discussed
within the confines of the ethical obligations that generally attend the
practice of law.
A. Electronic Document Management before
Litigation
In
general, attorneys are ethically obligated to promote justice. Model
Rule of Professional Conduct 8.4 prohibits “dishonesty, fraud, deceit, or
misrepresentation”[56]
and “conduct that is prejudicial to the administration of justice.”[57] While this prohibition can affect any legal
act, when dealing with electronic documents, it is often related to the
understanding that exists between counsel and client with regard to handling
electronic information. If there is a
good understanding about the matter, the attorney’s behavior is probably beyond
reproach. If the understanding is
sketchy or unspecified, it is likely that the attorney failed to gather knowledge
about the client’s electronic framework or failed to provide some necessary
advice regarding electronic documents held by the client.
1. E-mail
Management
Transmitting
information between attorneys and clients in e-mail messages causes specific
concern because the transmission itself is not secure. An e-mail message is “[a] document created or
received on an electronic mail system including brief notes, more formal or
substantive narrative documents, and any attachments, such as word processing
and other electronic documents, which may be transmitted with the message.”[58] When an e-mail message is sent, the
information travels in digital form through telephone lines in various routes
to a recipient’s computer mailbox. As
noted earlier, this information inadvertently can be delivered to an unintended
third party. It is also, however,
susceptible to interception by computer hackers.
Prior
to 1986, the FCA prohibited unauthorized publication or use of radio or
telephone communications. The development
of the Internet and e-mail messaging made it necessary for Congress to pass the
Electronic Communications Privacy Act (“ECPA”) to include protection for
electronic communications as well. The
ECPA prohibits “intentionally intercept[ing], endeavor[ing] to intercept, or
procur[ing] any other person to intercept or endeavor to intercept, any wire,
oral, or electronic communication.”[59] In addition, the ECPA expressly states that
“[n]o otherwise privileged wire, oral, or electronic communication intercepted
in accordance with, or in violation of, the provisions of this chapter shall
lose its privileged character.”[60]
Although
the information contained within an e-mail message may retain its privileged
character, an attorney also must ensure compliance with the ethical
requirements of the rules of professional conduct. For example, Model Rule of Professional Conduct 1.6(a) prohibits an attorney
from revealing confidential client information absent the client’s consent
after consultation, and imposes a duty on the lawyer to take reasonable steps
under the circumstances to protect such information against unauthorized
disclosure.[61] Given this rule, can an attorney ethically
send confidential information through an unprotected e-mail?
On
March 10, 1999, the ABA Standing Committee on Ethics and Professional
Responsibility issued a formal opinion stating:
A lawyer
may transmit information relating to the representation of a client by
unencrypted e-mail sent over the Internet without violating the Model Rules of
Professional Conduct (1998) because the mode of transmission affords a
reasonable expectation of privacy from a technological and legal
standpoint. The same privacy accorded
U.S. and commercial mail, land-line telephonic transmissions, and facsimiles
applies to Internet e-mail. A lawyer
should consult with the client and follow her instructions, however, as to the
mode of transmitting highly sensitive information relating to the client’s
representation.[62]
Attorneys should note the
Committee’s specific warning, however,
that if the transmitted information is so sensitive that extraordinary
protective measures are warranted, the lawyer should consult with the client
about whether another mode of
communication might be more advisable and should follow the client’s
instructions in that regard.[63] In that situation, e-mail messaging probably
should not be used without additional safeguards. Of course, this situation simply begs for
common sense: an attorney is expected to exercise greater care with information
that demands extreme protection, regardless of the form of communication. Obviously, an attorney would not trust such
information to a voice mail message left on a telephone system, nor would the
attorney casually drop it in the post.
Reliance
on the ECPA, other statutes, and even on the ABA opinion as a sufficient
justification for sending sensitive information over the Internet is probably
not a good idea. These decisions should
not replace good judgment. The bottom line is that e-mail messaging simply is
not suitable in all situations.
a. Protective Measures for E-mail
There
are a variety of protective measures available when an attorney is not
comfortable with unencrypted e-mail:
b. Suggestions for Managing E-mail
Because
e-mail messages may be broadly discovered and difficult to destroy, attorneys
should recommend that their clients use caution in this area of business
practice. In fact, counsel could provide
many suggestions to clients regarding the use of e-mail messaging:
The obvious disadvantage to
implementing such procedures is that the procedures may condemn e-mail to the
transmission of unimportant, “sterile” business information. Unfortunately, one of the best tools for
business communication may come to operate in a greatly diminished capacity.
2. Other
Pre-litigation Issues
One
of the most important things that should occur (before a threatened lawsuit
makes the parties wish it had) is the sharing of information between the
attorney and client. The attorney should
share preventive measures, and the client should share basic information about
its computer system.
In
addition to the measures discussed earlier, an attorney would be well advised
to inform the client that electronic information is discoverable in the event a lawsuit is filed against it and to
inform the client of its duty to preserve evidence, including electronic
evidence. Although discussed more
thoroughly in Section II, it is worth noting here that clients should be aware
of this duty before litigation
strikes and should be reminded that this duty is not to be taken lightly.
It is also advisable for an attorney to learn the basic aspects of the client’s computer system. Helpful information would include the structure of the system, locations and sources of electronic information, current preservation methods for electronic data, and current back-up routines. Awareness of these system aspects beforehand will assist the attorney during discovery -- from improving search techniques for requested information to lodging objections to an opponent’s far-reaching demands.
B. Electronic Document Management during Litigation
Electronic
document management becomes much more specific during litigation, as each party
attempts to construct and protect a case strategy, while at the same time
complying with discovery requests. Model Rule of Professional Conduct
3.4(a) provides that a lawyer shall not “unlawfully obstruct another party’s
access to evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value [and] . . . shall not counsel or
assist another person to do any such act[.]”[65] Aside from this caution, there are other
guides for litigation discovery tactics.
1.
Responding to Electronic Discovery Requests
Electronic
document requests often may leave an attorney with more questions than answers,
particularly when the request is vague or overbroad, or if it asks for
something that will be particularly difficult to produce. One incipient issue
involves the Rule 34(b) requirement that parties must produce documents for
inspection “as they are kept in the usual course of business or shall organize
and label them to correspond with the categories in the request.”[66] Although courts have interpreted this rule to
allow a party initially to produce documents in the manner of its choice,
courts will demand clearer identification of the documents if the receiving
party demonstrates sufficient need.[67] Importantly, a court also may require a party
to compile electronic data into a particular format or structure requested by
the opposing party.[68] This issue, however, is not addressed
consistently by all jurisdictions.[69] Because it can be difficult for courts to
analogize electronic documents to their paper counterparts, it remains unclear
exactly what parties will be expected to produce in response to an electronic
document request.
As
mentioned earlier, responding to a discovery request sometimes will require a
party to disclose information that is protected as a trade secret. Such information can take the form of a
database or even the specific organization of a computer program. This potential makes it important to petition
the court for help in tailoring a production request to avoid such a
disclosure.
Requiring
the production of electronic evidence in the form in which it is stored also
may lead to formatting and translation problems. For example, if the two parties involved in
the production request own different brands of word processing software, the
requested data may not be accessible.
This creates a need for the requesting party to use the opponent’s word
processor, which can violate licensing agreements and raise questions about
adequate protection for the intellectual property of third parties, such as
software vendors.
Discovery
requests also can include inspection of an opponent’s computer system to search
for electronic information. Because of
the extreme nature of such a request, courts typically require evidence that
the search will locate responsive information, that any inconvenience will be
justified, and that the chances for harm will be minimized.[70]
In
the case of Sattar v. Motorola, Inc.,[71]
the court rejected a demand for hard copies of an enormous number of e-mail
messages. Instead, it required the
producing party (who had initially produced the information on inaccessible
tapes) to: (1) download the data onto disks or a hard drive, (2) loan the other
party a copy of the necessary software, or (3) allow the other party on-site
access to its own system.
For
similar reasons, the court in Jones v.
Goord[72]
declined to grant the plaintiffs’ request for electronic records and databases
maintained by state correctional authorities.
The court recognized that the databases were not simply collections of
data that could be easily extracted for statistical analysis. Rather, the structure,
the layout, the meaning of codes, and the sources for those codes would need to
be explained to anyone unfamiliar with the computer system and its
purpose. However, in Guillen v. Pierce County,[73]
the court ruled that electronic reports and databases containing historical
traffic accident reports were discoverable.
Notably, the court observed that:
As
governments everywhere move from paper and microfiche documentation into the
age of twenty-first century information technology, public records are
increasingly being stored – even created
– in digital format, then added to
virtual databases that are accessed, in streams of bits and bytes, by vast networks of governmental agencies, often
across jurisdictional boundaries.[74]
As more courts become aware of the
valuable resources represented by these collections of electronic data, more
discovery requests that include such collections will be granted. Attorneys must be educated to know not only
what to request, but how to protect what should be unreachable.
2.
Suggestions for Handling Electronic Discovery
A few simple suggests are in order
to guide an attorney’s conduct in handling electronic discovery requests.
(1) Keep in mind that whatever one party
requests, the opponent likely will seek reciprocal information at some point
during the discovery process. Therefore,
make certain that the client’s collection and preservation efforts are
adequate.
(2) If an attorney intends to request documents
that are not kept in the ordinary course of business, the attorney should do so
as early as possible in order to ensure that the opponent has an opportunity to
preserve them. A reminder of the
obligation to preserve evidence, including electronic data, would not be out of
place.
(3) When wording an electronic discovery request,
do not use broad terms such as “all electronic documents;” instead, be as
specific as possible about the type of information needed and the format
preferred.
(4) Use the conference required by Federal Rule
of Civil Procedure 26(f) as an opportunity to discuss the logistics of electronic
discovery.
(5) Use interrogatories to obtain preliminary
information about an opponent’s computer system and then follow up with
document requests and/or deposition notices (to question, for example, the
opponent’s Information Technology Director).
(6) If the opponent is refusing to produce
electronic information and a compromise cannot be reached, seek help from the
court promptly. Electronic data is
constantly modified, deleted, and/or compromised. Carefully limit electronic data requests to
information that is necessary; be prepared to demonstrate that the request is
not a fishing expedition.
(7) At depositions, ask questions to assess
whether the opponent’s electronic search efforts and production are adequate.
(8) Respond quickly to a preservation letter and
include any objections and inquiries about the basis for the demand. If the requests seem unreasonable or
excessive, consider seeking a protective order.
(9) Advise a client of the duty to preserve
evidence. Employees should be instructed
not to delete, alter, destroy, or recycle any electronic data that could be
relevant to the litigation.
(10) Become
familiar with the client’s computer system and the people who maintain it,
keeping records of any electronic search efforts.
(11) If
backup tapes become an issue, pursue a strategy that involves an ongoing and
thorough search for pertinent electronic data, attempting to eliminate the need
for discovery of the tapes themselves.
(12) If a
large amount of electronic information is significant to the case, consider
early retention of a computer forensics expert.
3.
Recommendation of Early Intervention
Increasingly,
parties are learning that many problems inherent in electronic discovery can be
prevented or at least alleviated by discussing them as early as possible in the
litigation process. In a report prepared
by the Federal Judicial Center for the Civil Rules Advisory Committee in
September 2002, a group of attorneys and judges were polled for suggestions to
help accommodate computer-based discovery.[75] Many of those questioned responded that early
disclosure of computer information, particularly within the context of meetings
and documents required under Federal Rule of Civil Procedure Rule 26(f), would
greatly ease the strain that currently plagues litigation.
Both
federal district courts in Arkansas have adopted matching local rules that
require the parties to meet and confer regarding electronic discovery under
Rule 26(f). The parties also must file a
report with the court, stating: (1) whether there will be electronic discovery,
(2) the anticipated cost and schedule, (3) the format and media for production,
(4) any efforts taken to preserve data pending discovery, and (5) any other
anticipated problems.[76]
The
federal district court in Wyoming has a similar rule which targets e-mail as a
particular problem. Under Wyoming Local
Rule 26.1, the parties must meet and confer regarding: (1) data preservation,
(2) the scope of e-mail discovery, (3) how to deal with inadvertent production
of privileged e-mail, (4) whether they plan to discover deleted data, and (5)
whether they plan to discover backup data.[77] This rule also requires counsel, in
preparation for a Rule 26(f) conference, to review the contents of the clients’
computer files, investigate the clients’ computer systems, and be prepared to disclose how the
information is stored and how it can be retrieved.[78]
The
lesson derived from case law and from observation by those involved in such
discovery is that early intervention, using Rules 16 and 26, can be
decisive. This intervention necessitates
that computer-based information be included in Rule 26(a) disclosures and that
computer-based discovery be included in Rule 26(f) plans and Rule 16 orders. Many courts are recognizing the preventive
nature of these measures and expect parties to meet and confer about the
relevant electronic information.[79]
VI.
Preservation of Electronic Evidence
A. General Information
It
is clear that attorneys have a duty to advise their clients to take reasonable
steps to preserve all records, including electronic data, that may be subject
to discovery.[80] It is less clear, however, what may be
required of attorneys and their clients beyond this specific duty. The destruction of evidence can preclude a
requesting party from obtaining relevant information, it can harm the integrity
of the judicial proceedings, and it can harm the party responsible for the
destruction.
The
duty to preserve evidence arises when there is reasonably foreseeable
litigation.[81] Therefore, knowledge of a potential claim is
sufficient to obligate a party to begin preservation efforts.[82] If there is no prior knowledge of impending
litigation, then the duty to preserve evidence begins with service of the
complaint and before receipt of a production
request.[83] The responsibility not to lose or destroy
pertinent information only intensifies once the discovery process is under way.
Once
the duty to preserve has arisen, a party is obligated “to preserve what it
knows, or reasonably should know, is relevant in the action, is reasonably
calculated to lead to the discovery of admissible evidence, is reasonably
likely to be requested during discovery, and/or is the subject of a pending
discovery request.”[84]
B. Scope of the Preservation Duty
Increasingly,
parties are serving document requests that seek “all” electronic data,
including deleted and backup files, demanding as well that all destruction or
alteration of relevant information must cease.
While this demand appears to be overbroad, the facts of each case will
dictate whether or not certain information must be produced.
For
example, while case law does not indicate whether a diligent search for
responsive information includes a search for deleted files, there have been
cases in which a party was granted access to the opponent’s computer system to
search for deleted files.[85] In general, if there is concrete evidence
that electronic information has been destroyed, accompanied by a basis for
believing that such information may be discovered through a “deleted file”
search of a hard drive, a court may grant the request. However, the requesting party must: (1)
establish that the burden and intrusion are justified by the need and (2) show
a reasonable basis for concluding that the search will turn up otherwise
unavailable, responsive information.[86] At least three court decisions have granted
access to an opponent’s computers under these circumstances.[87]
Similarly,
a request for backup tapes may or may not be appropriate, depending on several
factors specific to each case. Because
backup tapes represent the data held by the computer system itself at a
particular time, it is reasonable to assume that the discovery request could be
met by accessing the information easily available on the system. Whether that is enough, however, can be
affected by several contingencies, including: (1) the judge, (2) the facts of
the case, (3) the specific requests of the parties, (4) the sufficiency of the
responding party’s efforts to search for and preserve data, and (5) whether
discoverable information is regularly being produced in the party’s normal
business operations. Courts have
enforced preservation obligations with regard to backup tapes and have imposed
sanctions on parties who failed to preserve them.[88]
In
a more recent decision, the court in McPeek
v. Ashcroft[89]
noted that “[t]here is certainly no controlling authority for the proposition
that restoring all backup tapes is necessary in every case.”[90] Aware of the costs involved and the lack of
precedent, this court “decided to take small steps and perform, as it were, a
test run”[91]
to determine if the costs associated with a backup search were justified by
relevant results. This trend of
examining whether or not parties should recover data stored on backup tapes was
continued in the case of Residential
Funding Corp. v. DeGeorge Financial Corp.[92] The bottom line appears to be that routine
recycling of computer storage media should be halted during discovery when that
is the most reasonable means of preserving the available data. [93]
Another
concern for clients is the very real possibility that satisfying the obligation
to preserve relevant electronic evidence may jeopardize their right to continue
managing electronic information in the best interest of the business. In order for many enterprises to continue
functioning profitably, electronic information may be overwritten on a routine
basis through applications in various computer systems. It has yet to be determined whether such
“ordinary” and routine destruction will violate any duty to preserve.
C. Penalties for Violating the Preservation
Duty
The
consequences for failing to preserve electronic evidence vary, but their impact
is frequently significant. In Danis v. USN Communications, Inc.,[94]
the failure to take reasonable steps to preserve data at the outset of
discovery resulted in a personal fine levied against the defendant’s CEO. Likewise, in the case of In re Prudential Insurance Co. of America Sales Practice Litigation,[95]
the defendant’s pattern of failure to prevent unauthorized document destruction
resulted in a $1 million fine and court-ordered measures to enforce the
document preservation order.
In
GTFM, Inc. v. Wal-Mart Stores, Inc., [96]
the defendant’s attorney provided inaccurate information to the plaintiffs
about computer records early in discovery, and discoverable computer records
were later destroyed. The court ordered
the defendant to pay the plaintiffs’ attorney’s fees and costs associated with
the sanction motion and with recovery of the data.[97]
The
case of Metropolitan Opera Ass’n, Inc. v.
Local 100, Hotel Employees & Restaurant Employees International Union,[98]
represents a worst case scenario. In
this case, the court found that the defendant had failed to conduct a
reasonable investigation in response to discovery requests, failed to prevent
the destruction of documents, failed to adequately instruct the person in
charge of document collection, and had allowed discoverable computers to be
replaced with new computers shortly before a scheduled on-site inspection. In addition, the defendant’s counsel had
represented to the court that these failures had not occurred. The court described the defendant’s behavior
as a “combination of outrages”[99]
and ordered judgment against the defendant with attorney’s fees.
D.
Implementing an Electronic Document
Preservation Program
In
October of 2002, the Sedona Conference Working Group met to discuss the
development of “best practices” for the legal profession in the area of
electronic document production in civil litigation.[100] The members of this group included private
practice lawyers, in-house counsel for large corporations, and a select group
of consultants in the electronic evidence and records management fields. As a result of that meeting, the group published
a report.[101] This publication was in a stage of peer
review until June 1, 2003; with the passage of that date, the group will assess
any comments and revise the original report.
The Sedona Principles includes fourteen
principles, with comments, regarding electronic document production. As a part of the first principle, the report
discusses the need for organizations to adopt policies for the treatment of
electronic documents. Those policies
involve:
VII.
Cost Allocation of Electronic Production
The
general rule of civil discovery is that the responding party pays the costs of
production incurred in responding to discovery requests. In the context of electronic discovery,
however, those costs can be substantial.
For example, the case of Murphy
Oil USA, Inc. v. Fluor Daniel, Inc.,
[103]
involved ninety-three backup tapes in a discovery dispute. In order to provide the requested
information, the tapes would have to be restored to a system and then converted
to a readable and searchable format. The
cost of such a process was estimated at $6.2 million before the necessary review for privileged material conducted by
the attorneys. Likewise, in Rowe Entertainment, Inc. v. William Morris
Agency, Inc.,[104]
which has become an important precedent on the issue of discovery cost
allocation, the court summarized cost estimates from computer experts for the
four defendants. For the first
defendant, complete restoration of 200 backup tapes would cost $9,750,000, but
restoration of eight randomly selected tapes could be done for a mere
$400,000. For the second defendant,
200,000 e-mail messages could be retrieved at a cost between $43,000 and
$84,000, but the attorney review of those messages was estimated at $247,000. The third defendant estimated that the total
cost of retrieving and restoring its e-mails would approach $395,000 at a
minimum. For the fourth defendant,
restoring forty-seven backup tapes and retrieving e-mail messages from 126
desktop computers was estimated to cost just over $400,000.
Until
recently, federal courts appeared unsympathetic to the complaints of responding
parties who have borne enormous financial burdens in order to comply with
requests for archived and/or deleted electronic data. After all, if a party chooses a
computer-based business system, the cost of retrieving information is an
ordinary and foreseeable risk.[105] However, due in part to a growing concern
that electronic discovery can impose extraordinarily harsh monetary burdens on
parties, absent appropriate limitations, courts have begun to allow discovery
context implications to dictate a more equitable allocation of costs.[106]
In
this regard, courts sometimes adopt a cost-shifting model based on the
likelihood that the search will prove successful. As one opinion noted:
A fairer approach borrows, by
analogy, from the economic principle of “marginal utility.” The more likely it is that the backup tape
contains information that is relevant to a claim or defense, the fairer it is
that the government agency search at its own expense. The less likely it is, the more unjust it
would be to make the agency search at its own expense. The difference is “at the margin.”[107]
Another
existing method involves a balancing test that examines a number of factors in
order to determine which party should bear the financial burden of producing
archived or deleted information. In Rowe, the court considered the following
factors:
(1) the
specificity of the discovery requests; (2) the likelihood of discovering
critical information; (3) the availability of such information from other
sources; (4) the purposes for which the responding party maintains the
requested data; (5) the relative benefit to the parties of obtaining the
information; (6) the total cost associated with production; (7) the relative
ability of each party to control costs and its incentive to do so; and (8) the
resources available to each party.[108]
One
month later, another federal district court adopted the same multi-factor test
to decide the burden of producing e-mails from backup tapes.[109] Both courts held that the cost should be
shifted to the requesting party.
These
recent cases seem to indicate a trend toward shifting the cost of producing
deleted and/or archived electronic data to the requesting party, although the
factors considered could tip the balance either way. Interestingly, in most cases where the cost
of production was shifted to the requesting party, production of large quantities
of electronic documents proceeded nonetheless.[110] The amount and nature of the electronic data
requested is not likely to diminish so long as the requesting party believes
that the cost of production is worthwhile, given the possible rewards.
In
1999, Texas amended its Rules of Civil Procedure to codify this cost-shifting
approach. Its new rule states as
follows:
To obtain discovery of data or
information that exists in electronic or magnetic form, the requesting party
must specifically request production of electronic or magnetic data and specify
the form in which the requesting party wants it produced. The responding party must produce the
electronic or magnetic data that is responsive to the request and is reasonably
available to the responding party in its ordinary course of business. If the responding party cannot – through
reasonable efforts – retrieve the data or information requested or produce it
in the form requested, the responding party must state an objection complying
with these rules. If the court orders
the responding party to comply with the request, the court must also order that
the requesting party pay the reasonable expenses of any extraordinary steps
required to retrieve and produce the information.[111]
This attitude is echoed by the ABA
Discovery Standard 29(b)(iii) which states: “The discovering party generally
should bear any special expenses incurred by the responding party in producing
requested electronic information.” While
ordinary and predictable costs of discovery continue to be fairly borne by the
producing party, courts are expected to shift costs where the demand is unduly
burdensome because of the nature of the effort involved to comply.
Although
the multi-factor balancing test and other approaches that attempt to tie the
cost burden to the likelihood that relevant evidence is found are more
equitable, they present practical problems for the courts. First, a cost allocation scheme often will
require extensive judicial supervision over the discovery process, thereby
increasing the already troublesome judicial backlog. Also, a fair outcome in cost allocation
assumes that the trial court has a strong familiarity with the particular case
and can accurately assess the likelihood that relevant information will be
found. Because discovery disputes
usually arise early in litigation, however, judicial familiarity with a case
probably will be minimal.
VIII.
Conclusion – Are Rule Changes Needed?
Because
the discovery of electronic information has pervaded the legal system so
thoroughly and so quickly, nearly every participant in the litigation process
must grapple with how best to adapt the system to the changes wrought by
technology. Both the federal and state
court systems are currently exploring the discovery implications of electronic
information.
At
the federal level, the Discovery Subcommittee of the U.S. Advisory Committee on
Civil Rules began to assess whether electronic information would warrant
proposed amendments to the Federal Rules of Civil Procedure as early as
October, 1999. After initial discussion
and investigation, the Subcommittee determined that no immediate action on rule
amendments was necessary or desirable.[112] This conclusion resulted from widely varying
opinions on whether rule changes were needed. Furthermore, because the
amendment process takes so long to complete, there was concern that advancing
technology would moot any new rule.
Therefore, the Discovery Subcommittee decided to work with the Research
Division of the Federal Judicial Center in order to analyze the issue more
thoroughly. At its May 2002 meeting, the
Civil Rules Advisory Committee summarized all of the problems created by
electronic document production but noted that there was “not much enthusiasm
for any particular solutions.”[113] The Research Division of the Federal Judicial
Center then presented its “Qualitative Study of Issues Raised by the Discovery
of Computer-Based Information in Civil Litigation” to the Civil Rules Advisory
Committee at its October 2002 meeting.
At its June 2002 meeting, the Technology Subcommittee of the Judicial
Conference Committee on Rules of Practice and Procedure reported that they were
studying whether any other changes are needed in the federal rules to
accommodate the proliferation of technology in the courts.
On
a state level, the National Center for State Courts has become involved in
these issues through its Civil Justice Reform Initiative, a program dedicated
to improving the state civil justice system.
The Initiative represents a number of projects that address problems
existing in civil proceedings. In 2002,
one of those projects was an ongoing study related to the discovery of
electronic evidence.
Many
believe that the impact of electronic discovery is so large that significant
changes to discovery rules and procedures eventually will be necessary. The Federal Rules of Civil Procedure make
almost no reference to electronic evidence and provide no guidance for
operations such as the discovery of e-mail.
They were written at a time when information was stored primarily on
paper rather than in digital form on tiny chips or magnetic tapes. Indeed, as the world becomes increasingly
paperless, it would be prudent to consider overhauling the rules in order to
adapt them to a digitalized society.
Among
the several problems with the rules, the various committees and task forces
have recognized that Rule 37 requires an order before sanctions can be imposed.[114] Nor do the discovery rules adequately address
spoliation in the context of electronic information since there are no
guidelines for record preservation.
Discovery of e-mail information does not adequately protect privacy
interests either. Some electronic
information defies the definitions of Rule 34, and the expense of complying
with electronic discovery requests has become overwhelming.
On
the other hand, courts and litigants appear to have adapted the existing
“antiquated” federal discovery rules on a case-by-case basis as production
issues are disputed, examined, and resolved.
In a report submitted by the Federal Judicial Center to the Advisory
Committee on Civil Rules for its October 2002 meeting, the authors detail their
findings, generated from a number of case studies involving magistrate judges
and attorneys. One finding notes that a
clear majority of the judges and attorneys who were interviewed did not think that the Civil Rules had a
major effect on how the computer-based discovery issues were resolved within
the case studies.[115] In fact, several case-study participants
observed that the rules already covered computer-based discovery. One judge commented, “It’s pretty clear that
documents in other forms are covered by the rules, and we don’t need a whole
lot more detail than that.”[116] Some of the attorneys who participated also
argued against changing the rules. One
stated that the context in which electronic discovery issues arise “varies so
much that you need to do things on a case-by-case basis.”[117] Another attorney said that changing the rules
to address electronic discovery specifically would “add complication, increase costs,
and send litigants to state court.”[118]
On
a private level, the Sedona Conference was formed as a nonprofit, 501(c)(3)
research and education institute dedicated to the advancement of law and policy
in specific legal areas, including complex litigation. One of the goals that predominates their
Working Group Series is to produce peer-reviewed, authoritative sets of
principles on difficult issues confronted daily by participants in the legal
system. In March of 2003, they published
their first collection, entitled The
Sedona Principles: Best Practices, Recommendations, & Principles for
Addressing Electronic Document Production.
The fourteen principles discussed in this publication will influence not
only the governmental committees examining the same issues, but also
practitioners themselves, as they struggle to understand the unique application
of electronic systems to an existing system that is not quite prepared to
handle them.
Whether
rule changes eventually are approved or not, it is evident that the issues
raised by electronic document production have snared attention in nearly every
facet of the legal system. While judges
labor to parse discovery disputes in accord with long-established rules,
attorneys labor to protect their clients from the consequences of unfamiliarity
with electronic information manipulation.
And as technology inexorably marches on, the ensuing legal tangles may
leave proposed solutions far behind.
Bibliography
Lisa
M. Arent et al., Ediscovery: Preserving,
Requesting & Producing Electronic Information, 19 Computer & High Tech. L.J. 131
(2002).
Matthew
J. Boettcher & Eric G. Tucciarone, Concerns
Over Attorney-Client Communication Through E-Mail: Is the Sky Really Falling?,
2002 L. Rev. M.S.U. – D.C.L. 127
(2002).
Karen
M. Coon, Note, United States v. Keystone
Sanitation Company: E-mail and the Attorney-Client Privilege, 7 Rich. J.L. & Tech. 30 (2001), available at http://law.richmond.edu/jolt/. Jonathan B. Ealy & Aaron M. Schutt, What – If Anything – Is an E-Mail? Applying Alaska’s Civil Discovery
Rules to E-Mail Production, 19 Alaska
L. Rev. 119 (2002).
Molly
Treadway Johnson et al., A Qualitative
Study of Issues Raised By the Discovery of Computer-Based Information in Civil
Litigation, September 13, 2002, Report by Federal Judicial Center submitted
to Judicial Conference Advisory Committee on Civil Rules, available at http://www.U.S.courts.gov/rules (last visited March 4,
2004).
Richard
L. Marcus, Confronting the Future: Coping
with Discovery of Electronic Material, Law
& Contemp. Probs., Spring/Summer
2001, at 253.
Michael
Marron, Discoverability of “Deleted”
E-Mail: Time for a Closer Examination, 25 Seattle
U. L. Rev. 895 (2002).
Carey
Sirota Meyer & Kari L. Wraspir, E-Discovery:
Preparing Clients For (and Protecting Them Against) Discovery in the Electronic
Information Age, 26 Wm. Mitchell L.
Rev. 939 (2000).
Gregory
I. Rasin & Joseph P. Moan, Fitting a
Square Peg into a Round Hole: The Application of Traditional Rules of Law to
Modern Technological Advancements in the Workplace, 66 Mo. L. Rev. 793 (2001).
Martin
H. Redish, Electronic Discovery and the
Litigation Matrix, 51 Duke L.J.
561 (2001).
Hon.
Shira A. Scheindlin & Jeffery Rabkin, Electronic
Discovery in Federal Civil Litigation: Is Rule 34 up to the Task?, 41 B.C. L. Rev. 327 (2000).
Sherry L.
Talton, Note, Mapping the Information
Superhighway: Electronic Mail and the Inadvertent Disclosure of Confidential
Information, Rev., Litig.,
Winter 2001, available at WL 20
REVLITI 271.
The Sedona Principles: Best Practices,
Recommendations & Principles for Addressing Electronic Document Production,
A Project of the October 2002 Sedona Conference Working Group (March 2003), available at
http://www.thesedonaconference.org/publications_html (last visited Dec. 30, 2003).
Kenneth
J. Withers, Computer-Based Discovery in
Federal Civil Litigation, 2000 Fed.
Cts. L. Rev. 2 (2000), available
at WL 2000 FEDCT LR2.
Relevant
Websites
http://www.applieddiscovery.com/lawLibrary/default.asp
(last visited Dec. 22, 2003). This web
site is provided by Applied Discovery, an electronic discovery firm, in order
to keep current and prospective clients up-to-date on the law. The site provides case law and other basic
information.
http://www.kenwithers.com
(last visited Dec. 22, 2003). This web
site is maintained by Ken Withers, a member of the Research Division of the
Federal Judicial Center, but it is unofficial.
It contains a wealth of information about electronic discovery and
provides easy access to many other relevant sources, such as The Sedona Principles.
http://www.krollontrack.com/LawLibrary/CaselawList
(last visited Dec. 22, 2003). This web
site provides an excellent and up-to-date compilation of electronic discovery
case summaries.
ENDNOTES
† Submitted by the authors on behalf of
the FDCC Management, Economics & Technology of Practice Section.
[1] Fed. R. Civ. P. 26(a)(1).
[2] Fed. R. Civ. P. 26(a)(1)(B).
[3] Brand v. Mazda Motor of Am., Inc.,
No. 95-4139-SAC, 1996 WL 707018 (D. Kan. Nov 18, 1996).
[4] Taydus
v. Cisneros, 902 F. Supp. 288 (D. Mass. 1995).
[5] MMAR Group, Inc. v. Dow Jones &
Co., 187 F.R.D. 282 (S.D. Tex. 1999).
[6] Fed. R. Civ. P. 34(a) advisory
committee’s note 1970.
[7] Anti-Monopoly, Inc. v. Hasbro, Inc.,
1995 WL 649934, at *2 (S.D.N.Y. Nov. 3, 1995).
[8] Lintz v. Am. Gen. Fin., Inc., No.
CIV.A. 98-2213-JWL, 1999 WL 619045, at *1 (D. Kan. Aug. 2, 1999).
[9] See GTFM, Inc. v. Wal-Mart
Stores, Inc., No. 98 Civ. 7724 (RPP), 2000 U.S. Dist. LEXIS 16244 (S.D.N.Y.
Nov. 8, 2000).
[10] In re Bristol-Myers Squibb Sec.
Litig., 205 F.R.D. 437, 441 (D.N.J. 2002).
[11] Residential Funding Corp. v. DeGeorge
Fin Corp., 306 F.3d 99 (2d Cir. 2002); Sheppard v. River Valley Fitness One,
L.P., 203 F.R.D. 56 (D.N.H. 2001).
[12] Hickman v. Taylor, 329 U.S. 495, 501
(1947).
[13] Fed.
R. Civ. P. 34(a).
[14] Fed.
R. Civ. P. 34(a) advisory committee’s note 1970.
[15] Fed.
R. Civ. P. 34(b).
[16] Fed.
R. Civ. P. 26(b)(1).
[17] Fed. R. Civ. P. 26(b)(2).
[18] Fed. R. Civ. P. 26(b)(2).
[19] Kenneth J. Withers, Electronic Discovery, National Workshop for United States Magistrate Judges, June 12, 2002 (slides and text) at slide 39, available at http://www.kenwithers.com (last visited March 4, 2004).
[20] Kenneth J. Withers, Electronic Discovery: What You Need to Know,
Assn. of the Bar of New York City, May 29, 2003 (slides and text) at slide
22, available at http://www.kenwithers.com
(last visited March 4, 2004).
[21] Id., (slides and text) at slide 25, available at http://www.kenwithers.com (last visited March 4,
2004).
[22] Kenneth J. Withers, Computer-Based Discovery in Federal Civil Litigation, 2000 Fed. Cts. L. Rev. 2, II. F. 2 (2000).
[23] Tex.
R. Civ. P. 196.4.
[24] Id.
[25] In re Gen. Instrument Corp.
Sec. Litig., No. 96 C 1129, 1999 WL 1072507, at *6 (N.D. Ill. Nov. 18, 1999).
[26] Fed. R. Civ. P. 26(b)(1).
[27] Fed.
R. Civ. P. 26(b)(1) advisory committee’s note 2000.
[28] Byers v. Ill. State Police, 53 Fed. R.
Serv. 3d 740 (N.D. Ill. 2002); Hayes v. Compass Group USA, Inc., 202 F.R.D. 363
(D. Conn. 2001); McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001); Alexander v.
F.B.I., 188 F.R.D. 111 (D.D.C. 1998); Ex Parte Wal-Mart, Inc., 809 So.
2d 818 (Ala. 2001).
[29] Michael Marron, Discoverability of “Deleted” E-Mail: Time
for a Closer Examination, 25 Seattle
U. L. Rev. 895, 913 (2002).
[30] Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
[31] See John H. Wigmore, Evidence in Trials at Common Law 2290 (McNaughton rev. ed.
1961) (explaining the history of the privilege).
[32] See, e.g., In re Grand Jury
Investigation of Ocean Transp., 604 F.2d 672, 675 (D.C. Cir. 1979).
[33] United States v. Keystone Sanitation
Co., 899 F. Supp. 206, 208 (M.D. Pa. 1995).
[34] Duplan Corp. v. Deering Milliken,
Inc., 397 F. Supp. 1146, 1191 (D.S.C. 1974).
[35] Id.
at 1190.
[36] In re Sause Bros. Ocean Towing,
144 F.R.D. 111, 116 (D. Or. 1991); Parkway Gallery Furniture, Inc. v.
Kittinger/Pa. House Group, Inc., 116 F.R.D. 46, 52 (M.D.N.C. 1987).
[37] 140 F.R.D. 252 (D. Me. 1992).
[38] Id.
at 253 (quoting In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989)
(quoting In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir.
1984) (citation omitted))).
[39] 314 F. Supp. 546 (D.D.C. 1970).
[40] Id.
at 549.
[41] CIBA-Geigy Corp. v. Sandoz Ltd., 916
F. Supp. 404, 412-14 (D.N.J. 1995); Mendenhall v. Berber-Greene Co., 531 F.
Supp. 951, 955 (N.D. Ill. 1982).
[42] See, e.g., Bank Brussels Lambert v.
Credit Lyonnais, 160 F.R.D. 437, 442 (S.D.N.Y. 1995).
[43] United States v. Keystone Sanitation
Co., 885 F. Supp. 672, 676 (M.D. Pa. 1994); see
also Alldread v. City of Grenada, 988 F.2d 1425, 1433 (5th Cir. 1993)
(citing similar factors).
[44] FDIC v. Marine Midland Realty Credit
Corp., 138 F.R.D. 479, 482 (E.D. Va. 1991).
[45] See Audrey Rogers, New Insights on Waiver and the Inadvertent Disclosure of Privileged
Materials: Attorney Responsibility as the Governing Precept, 47 Fla. L. Rev. 159, 175 (1995).
[46] 205 F.R.D. 421 (S.D.N.Y. 2002).
[47] Tex.
R. Civ. P. 193.3(d).
[48] Tex.
R. Civ. P. 193.3(d), cmt. 4.
[49] 60 F. Supp. 2d 1050 (S.D. Cal. 1999).
[50] 52 Fed. R. Serv. 3d 1420 (D. Del.
2002).
[51] Id. at 1429.
[52] See Anderson v. Cornejo, No. 97
C 7556, 2001 U.S. Dist. LEXIS 2330 (N.D. Ill. Mar. 6, 2001).
[53] See discussion infra Section V.
[54] In re Pioneer Hi-Bred Int’l,
Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001).
[55] Fed. R. Civ. P. 26(f).
[56] Model Rules of Prof’l Conduct R. 8.4(c)
(2002).
[57] Id., R. 8.4(d).
[58] 36 C.F.R. § 1234.2 (2003).
[59] 18 U.S.C. § 2511(1)(a) (1998).
[60] 18 U.S.C. § 2517(4) (1998).
[61] Model Rules of Prof’l Conduct R. 1.6(a)
(2002).
[62] ABA Formal Op. 99-413 (1999)
(discussing confidentiality protection of e-mail messages).
[63] Id.
[64] Matthew
J. Boettcher & Eric G. Tucciarone, Concerns
Over Attorney-Client Communication Through E-Mail: Is the Sky Really Falling?, 2002
L. Rev. M.S.U. – D.C.L. 127, 143
(2002).
[65] Model Rules of Prof’l Conduct R. 3.4(a)
(2002).
[66] Fed. R. Civ. P. 34(b).
[67] T.N. Taube Corp. v. Marine Midland
Mortgage Corp., 136 F.R.D. 449 (W.D.N.C. 1991).
[68] Anti-Monopoly, Inc. v. Hasbro, Inc.,
No. 94 Civ. 2120 (LMM)(AJP), 1995 U.S. Dist. LEXIS 16355 (S.D.N.Y. Nov. 3,
1995); Nat’l Union Elec. Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp.
1257 (E.D. Pa. 1980).
[69] See Torrington Co. v United
States, No. 91-08-00568, 1992 WL 40699 (Ct. Int’l Trade Feb. 21, 1992).
[70] See
Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996).
[71] 138 F.3d 1164 (7th Cir. 1998).
[72] No. 95 Civ. 8026 (GEL), 2002 U.S.
Dist. LEXIS 8707 (S.D.N.Y. May 16, 2002).
[73] 31 P.3d 628 (Wash. 2001), modified, 34 P.3d 1218 (Wash. 2001), rev’d
in part, 537 U.S. 129 (2003).
[74] Id.
at 646.
[75] Molly
Treadway Johnson et al., A Qualitative
Study of Issues Raised by the Discovery of Computer-Based Information in Civil
Litigation, September 13, 2002, Report by Federal Judicial Center submitted
to Judicial Conference Advisory Committee on Civil Rules for October 2002
meeting, available at http://www.uscourts.gov/rules
(last visited March 4, 2004).
[76] Ar. D.C. R. 26.1(4).
[77] Wy. Civ. R. 26.1(d)(3)(B).
[78] Wy. Civ. R. 26.1(d)(3).
[79] In re Bristol-Myers Squibb Sec.
Litig., 205 F.R.D. 437, 444 (D.N.J. 2002).
[80] N.Y. State Nat’l Org. for Women v.
Cuomo, No. 93 Civ. 7146 (RLC) JFC, 1998 WL 395320, at *2 (S.D.N.Y. July 14,
1998).
[81] Kronisch v. United States, 150 F.3d
112, 126 (2d Cir. 1998).
[82] Winters v. Textron, Inc., 187 F.R.D.
518, 520 (M.D. Pa. 1999).
[83] Mathias v. Jacobs, 197 F.R.D. 29, 37
(S.D.N.Y. 2000).
[84] Wm. T. Thompson Co. v. Gen. Nutrition
Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984); see also China Ocean Shipping (Group) Co. v. Simone Metals Inc.,
No. 97 C 2694, 1999 U.S. Dist. LEXIS 16264, at *12 (N.D. Ill. Sept. 30, 1999)
(“[t]he duty to preserve evidence includes any relevant evidence over which the
non-preserving entity had control and reasonably knew or could reasonably foresee
was material to a potential legal action.”).
[85] Playboy
Enters., Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999); Simon Prop.
Group L.P. v. MySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000); Northwest
Airlines, Inc. v. Local 2000 Int’l Brotherhood of Teamsters, Civ. Action No.
00-08 (D. Minn. Feb. 2, 2000).
[86] Fennell v. First Step Designs, Ltd.,
83 F.3d 526 (1st Cir. 1996).
[87] Playboy
Enters., 60 F. Supp. 2d 1050; Simon
Prop. Group, 194 F.R.D. 639; Northwest
Airlines, Civ. Action No. 00-08.
[88] Linnen v. A.H. Robins Co., No.
97-2307, 1999 Mass. Super. LEXIS 240 (Mass. Super. Ct. June 16, 1999); Applied
Telematics, Inc. v. Sprint Communications Co., No. 94-4603, 1996 U.S. Dist.
LEXIS 14053 (E.D. Pa. Sep. 17, 1996).
[89] 202 F.R.D. 31 (D.D.C. 2001).
[90] Id. at 33.
[91] Id. at 34.
[92] 306 F.3d 99 (2d Cir. 2002).
[93] In re Cheyenne Software, Inc.
Sec. Litig., No. CV-94-2771(NG), 1997 WL 714891 (E.D.N.Y. Aug. 18, 1997).
[94] 53 Fed. R. Serv. 3d 828 (N.D. Ill.
2000).
[95] 169 F.R.D. 598 (D.N.J. 1997).
[96] 49 Fed. R. Serv. 3d 219 (S.D.N.Y.
2000).
[97] See
also Minn. Mining & Mfg. Co. v. Pribyl, 259 F.3d 587 (7th Cir. 2001);
Lewy v. Remington Arms Co., 836 F.2d 1104 (8th Cir. 1988); Danis v. USN
Communications, Inc., 53 Fed. R. Serv. 3d 828 (N.D. Ill. 2000).
[98] 212 F.R.D. 178 (S.D.N.Y. 2003).
[99] Id. at 182.
[100] The Sedona Principles: Best Practices,
Recommendations, & Principles for Addressing Electronic Document Production
(March 2003), at p. 1, available at http://www.thesedonaconference.org/publications_html
(last visited Dec. 30, 2003).
[101] The
Sedona Principles: Best Practices, Recommendations, & Principles for
Addressing Electronic Document Production (March 2003), available at
http:// www.thesedonaconference.org/publications_html (last visited Dec. 30,
2003).
[102] Id. at 11.
[103] 52 Fed. R. Serv. 3d 168 (E.D. La. 2002).
[104] 205 F.R.D. 421 (S.D.N.Y. 2002).
[105] In re Brand Name Prescription
Drugs Antitrust Litig., Nos. 94 C 897, MDL 997, 1995 WL 360526, at *2 (N.D.
Ill. June 15, 1995).
[106] See
Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120 (LMM)(AJP), 1996 WL 22976
(S.D.N.Y. Jan. 23, 1996).
[107] McPeek v. Ashcroft, 202 F.R.D. 31, 34
(D.D.C. 2001).
[108] Rowe Entm’t, Inc. v. William Morris
Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y. 2002).
[109] Murphy Oil USA, Inc. v. Fluor Daniel,
Inc., 52 Fed. R. Serv. 3d 168 (E.D. La. 2002).
[110] Michael
Marron, Discoverability of “Deleted”
E-Mail: Time for a Closer Examination, 25 Seattle
U. L. Rev. 895, 921 (2002).
[111] Tex.
R. Civ. P. 196.4 Electronic or Magnetic Data.
[112] Minutes,
Civil Rules Advisory Committee, October 14 and 15, 1999, available at http://www.uscourts.gov/rules/Minutes (last visited
March 4, 2004).
[113] Id., May 6 and 7, 2002, available at
http://www.uscourts.gov/rules/Minutes (last visited March 4, 2004).
[114] Fed. R. Civ. P. 37(b).
[115] See
Johnson, supra note 75, at 2.
[116] Id.
at 12.
[117] Id.
[118] Id.
(Authors’ bios)
Terry
L. Hill is a partner in the law firm of Manier & Herod, Nashville,
Tennessee. He is a past president of the
Tennessee Defense Lawyers Association and was recently selected for inclusion
in Best Lawyers in America. Mr. Hill has served as Chairman of the FDCC
Workers’ Compensation Section, and presently chairs its Management &
Economics of Trial Practice Section. He
is Editor of Tennessee Workers’
Compensation Law – A Practical Guide, now in its second printing.
Jennifer
S. Johnson is a former associate with the law firm of Manier & Herod,
Nashville, Tennessee. Currently, she is
a professor in the Honors College of Freed-Hardeman University, Henderson,
Tennessee.