E-Discovery Field Guide
Planning an E-Discovery Strategy: The Five Phases of E-Discovery
E-discovery includes several distinct but interconnected phases. Each phase presents its own challenges and opportunities, and decisions made early in the process often will influence the options and costs in later phases. Below are the five broad phases of e-discovery that parties and attorneys should consider when planning their e-discovery strategy:
1. Pre-Litigation Information Governance
The best e-discovery strategy starts long before the complaint is filed. A party can ensure compliance and reduce its e-discovery costs through a comprehensive information governance and litigation preparedness plan, which includes knowing the company’s electronic systems and establishing data organization and retention policies. A strong foundation will allow a party to quickly identify sources of relevant electronically stored information (ESI), implement litigation holds, and streamline the entire e-discovery process.
2. Identifying, Preserving, and Collecting ESI
Once litigation becomes reasonably foreseeable, parties are obligated to identify and preserve relevant ESI and documents. Typically, this includes sending litigation hold notices and stopping auto-deletion programs, as well as possibly imaging data sources that are at risk of deletion. Relevant ESI then must be collected from custodial and non-custodial data sources, such as user files, e-mail accounts, laptops, and shared network drives.
3. Processing, Analyzing, and Reviewing ESI
Once ESI is collected, it must be organized and stored for searching, analyzing, and reviewing. Depending on volume, this may be the most time consuming (and expensive) phase of e-discovery. But technology exists that, if used properly, can help automate the process and reduce costs. Parties should make strategic decisions about how much time and money to spend reviewing (or not reviewing) documents.
4. Producing ESI
Relevant, non-privileged ESI should be produced to the opposing party in an appropriate format. Document productions can be made in a variety of formats, and parties should discuss early in a case about what format they will use in compliance with procedural rules.
5. Using and Presenting ESI
The light at the end of the tunnel. ESI produced by both sides must be analyzed based on the substantive issues in the case. The parties then must incorporate that ESI into their case strategy, including at depositions, with experts, and, ultimately, at trial.
Electronic Production Formatting is an Early E-Discovery Topic that Parties Ignore at their Own Risk
The production format of electronically stored information (ESI) is one of many e-discovery topics that attorneys should address early in a case, and the failure to do so may have costly consequences later.
Federal Rule of Civil Procedure 34(b)(1)(C) provides that the party requesting documents may specify the ESI production format. Under Rule 34(b)(2)(D), the responding party may object to the proposed form, but objecting alone is insufficient: the objecting party also “must state the form or forms it intends to use.” The failure to timely object may result in waiving the objections. However, if no production format is specified, the responding party may produce ESI in the form in which it is “ordinarily maintained,” or in another “reasonably usable form” under Rule 34(b)(2)(E)(ii).
If parties are prepared to have early discussions about formats, a discovery plan can be agreed to and any disputes can be elevated to the court. On the other hand, ignoring production questions, or simply deciding unilaterally how to proceed, may result in bigger problems down the road, as the defendant learned last year in Morgan Hill Concerned Parents Association v. California Department of Education, No. 2:11-CV-3471, 2017 WL 445722 (E.D. Cal. Feb. 2, 2017).
In Morgan Hill, the plaintiffs moved to compel the defendant to produce emails in “native” format with all metadata attached. (Native production is the format used by the application that originally created the document. For example, if a spreadsheet was created using Microsoft Excel, then native format is the original Microsoft Excel format.) The defendant objected that it already had produced the documents in “the industry standard load format,” rather than native format.
Relying on Rule 34(b)(1)(C), the Morgan Hill court found that once the plaintiff had specified a format, the defendant was obligated to object. However, the defendant only raised a vague objection to the plaintiff’s requested format three years after the requests were served, and even that objection failed to propose an alternative ESI format. Finally, the court disagreed that reproducing documents in native format would be unduly burdensome, finding that “this [was] a problem of [defendant’s] making” by not complying with the Federal Rules. The court ordered the defendant to reproduce the 29,000 documents in the plaintiff’s preferred format.
E-discovery is an active, collaborative process, and that is particularly true under the amended Federal Rules of Civil Procedure. Morgan Hill provides a reminder that parties should discuss production formatting issues early on, and a responding party cannot ignore a request or chart its own path. As the defendant in Morgan Hill learned the hard way, avoiding difficult e-discovery conversations until months or years into a case will not excuse a failure to play by the rules, but rather may only result in more time and expense in the end.
Six Tips for Implementing Litigation Holds When a Lawsuit Is On the Horizon
Parties generally are not under a duty to preserve documents and electronically stored information (ESI). However, a duty to preserve relevant records arises when litigation becomes known or reasonably foreseeable. One way that a party can satisfy its document preservation obligation is by issuing a “litigation hold notice.” Implementing hold notices requires close coordination between counsel and the client, and knowledge of a client’s electronic systems and data practices. Below are six tips that we recommend when drafting and issuing litigation hold notices:
Be on alert for triggering events. A triggering event that makes litigation reasonably foreseeable may be obvious (e.g., a letter threating litigation or a filed complaint), or require closer analysis (e.g., a complaint from an employee or knowledge of a workplace accident). Parties must be aware that notice of potential litigation can take many forms. Often corporate counsel may be the first to learn of possible litigation, and when in doubt, litigation counsel should be consulted to determine the scope of any preservation duties.
Be fast when the time comes. Implementing a litigation hold is not fun, but each day delayed may be another day that ESI is lost forever. Sound pre-litigation information governance practices are critical to quickly, efficiently, and effectively implementing a document hold when the time comes.
Be specific about preservation duties. The scope of a litigation hold is determined by the types of documents and ESI that the client maintains, and the relevant issues in the litigation. A party must take “reasonable steps” to preserve ESI, and parties often are surprised by the breadth of permissible discovery. The litigation hold notice should describe exactly what types of records must be preserved and for what period of time. It should not be left up to the employees to determine what is required of them.
Be clear about compliance. A litigation hold notice should be written and state in plain English what each recipient is required to do. The notice should remind recipients about the consequences of non-compliance and require that all recipients reply to the notice in writing to confirm their understanding and compliance. Documenting the preservation process is critical in the event that a spoliation dispute arises later.
Be careful of auto-deletion programs. Certain programs, including e-mail, may have automatic deletion programs that must be disabled under a litigation hold. It is not enough to tell employees not to delete an e-mail folder or throw out documents; all potentially relevant ESI, including back-up or archived ESI, may require preservation.
Be sure the hold remains effective. Sending the litigation hold notice is only step one. Counsel must follow up to ensure that the hold was implemented effectively and remains in place throughout the litigation. This includes staying aware of departing employees and ensuring that their data and equipment are preserved.
Courts Continue to Crackdown On Boilerplate Discovery Objections
The 2015 amendment to Federal Rule of Civil Procedure 34(b)(2) requires that a party objecting to a document request “state with specificity the grounds for objecting to the request, including the reasons” and “whether any responsive materials are being withheld on the basis of that objection.” Now, more than two years since the 2015 amendments became effective, litigants should expect courts to continue cracking down on objection violations.
A January 2018 decision from the Eastern District of Michigan highlights the growing frustration among at least some courts when litigants fail to comply with Rule 34(b)(2). In Wesley Corp. v. Zoom T.V. Prod., LLC, No. 17-10021, 2018 WL 372700 (E.D. Mich. Jan. 11, 2018), the defendants responded to the plaintiffs’ document requests with classic boilerplate “vagueness” and “burden” objections that did not specify how the discovery request was deficient and how the defendants would be harmed if they were forced to respond. Deriding these boilerplate objections under Rule 34(b)(2), the court’s frustration was palpable:
When objections lack specificity, they lack effect: an objection that does not explain its grounds (and the harm that would result from responding) is forfeited. “Boilerplate or generalized objections are tantamount to no objection at all and will not be considered. . . .” Lawyers who purport to “preserve” an objection by including it in a boilerplate statement must be prepared to face the fact that the result of a substance-free objection is generally “the opposite of preservation[,]” i.e., forfeiture. Similarly, the common “notwithstanding-the-above” designations that frequently follow a boilerplate objection and precede a more substantive response also fail to preserve objections. The idea that boilerplate in some talismanic way preserves an objection is fallacy. . . .
This court is not the first—nor will it be the last—to condemn the use of boilerplate objections. Indeed, perhaps the only thing more surprising than the pervasive reliance on boilerplate is the practice’s continued existence in the face of strong and widespread criticism by federal courts. . . .
Courts and commentators have called on courts to deter boilerplate by imposing sanctions with their inherent power and under Federal Rule of Civil Procedure 26. The advisory committee notes to Rule 26 also contemplate sanctions as a solution to discovery abuses.
The court followed through on its threat: in a later order, it sanctioned the defendants in the amount of $8,250.00 based on the reasonable attorneys’ fees incurred by the plaintiffs in filing the motion to compel.
Rule 34(b)(2), if followed, adds clarity to the discovery process, but it also imposes more responsibility on counsel to understand their client’s documents and ESI early in a case. Counsel should talk to custodians and begin collecting documents prior to being served with discovery requests so that specific objections can be made. That may include testing ESI search terms and having the ability to articulate within an objection the actual burden (with facts) of responding to a request. Reliance on boilerplate objections may result in forfeiting those objections, as well as sanctions for discovery violations.
To learn more about Bernstein Shur’s e-discovery team and services, contact our team members at email@example.com or 207 228-7145 or Jack Woodcock at firstname.lastname@example.org or 207 228-7115.