This article summarizes some of the fundamental e-discovery issues that must be addressed in modern civil litigation.

Today, e-discovery is no longer a best practice; it is the required practice. On December 1, 2006, proposed changes relating to electronically stored information (ESI) in the Federal Rules of Civil Procedure (FRCP) took effect. These changes require advanced e-discovery planning in the earliest stages of litigation and will impact almost every case in federal court, and a vast majority of state court cases as state legislatures adopt the new FRCP provisions in full or in part.

While court reporters typically are uninvolved in the discovery process, evidence issues and e-discovery plans are beginning to migrate into depositions, hearings, and the courtroom. Becoming familiar with such recent developments will prove advantageous in the court reporting field as this area continues to develop. This article summarizes some of the fundamental e-discovery issues that must be addressed in modern civil litigation.

LOCATION OF DATA
As electronic discovery becomes routinely accepted in today’s technology marketplace, courts increasingly are demanding counsel to actively engage in the direction and management of the e-discovery process. In one landmark e-discovery case, Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004), the court addressed the general role of counsel in litigation, stating that “[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”
This includes assuming responsibility for uncovering relevant documents (with the assistance of an e-discovery expert if necessary), evaluating discovery requests for electronic information and properly preserving this information. It is imperative that all data locations are explored when searching for responsive documents.

PRESERVATION
Although electronic files are easy and convenient to create and duplicate, they also are easy to alter or destroy. For example, simply booting a computer can destroy “slack” and “temporary” files contained on a computer hard drive. Clicking on a file, rather than properly copying it, can change its “last access” date, revealing another innocuous way that computer data can be lost. In most cases, maintaining the status quo without taking proactive measures to save computer evidence will have unfortunate consequences.

As soon as litigation is anticipated, preservation letters should be sent to all parties and nonparties in possession of potentially relevant data. In some cases, securing a preservation order from the court and monitoring compliance thereafter may be required. Finally, practitioners must discuss technical considerations with their client’s information technology manager and electronic discovery expert. In complicated or voluminous discovery cases, requesting that the court appoint a neutral expert may be advisable.

SPOLIATION AND SANCTIONS
When proper preservation procedures are not followed, courts are faced with considering the effect of the spoliation, negligent or intentional destruction of evidence, and whether any sanctions are appropriate. From monetary fines to adverse inferences or dismissal and default judgments, courts have levied a wide range of penalties on parties committing e-evidence spoliation.

CONCLUSION
In today’s high-tech corporate world, litigators, courts, and organizations have clearly acknowledged that technology has a significant role in litigation. With this ever-growing recognition of modern technology trends, all legal professionals – including court reporters – will benefit by understanding the issues, rules, and case law relating to electronically stored information. 

Adam Kish, Esq., is a legal consultant for Kroll Ontrack Inc., a Minnesota-based company specializing in electronic discovery, paper discovery, and computer forensics. 

 

 

 

This entry was posted on Wednesday, December 10th, 2008 at 8:43 pm and is filed under Court Reporting News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.