~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

On December 1, 2006, the world of civil litigation was forever changed with the adoption of amendments to the Federal Rules of Civil Procedure that addressed electronically stored information (ESI).  As of that date, ESI officially attained the same importance as paper documents in litigation.
 
         Speaking from the trenches, I saw companies fearful of their responsibilities and concerned about the impact on their operations. We technologists knew the type of information that was buried deep in computer systems and the difficulties in locating it. We then learned two things that somewhat aided our sleepless nights: the "Safe Harbor" and updated rules were only for cases in federal courts.
 
         But now the Tennessee Supreme Court has adopted essentially the same amendments effective July 1, 2009. The General Assembly may not approve the resolutions until later this year, but it is destiny and companies can no longer hide from eDiscovery. When combining Federal and State rules providing the expectancy of electronic discovery, with the fact that more than 70% of digital information will never be printed, eDiscovery is everywhere.
 
         For anyone still wondering what eDiscovery is, the simplest definition is the extension of the traditional discovery process to information that is stored on computer systems.  Examples of ESI encountered will includee-mail, word processing files, spreadsheets, and information from company databases. This information will reside in a variety of places such as corporate computers, corporate servers, smartphones, Internet servers, and even home computers.
 
         The good news is that information in an electronic form can be much easier to cull, analyze, and review.  Put differently, technology may have created this problem, but technology can also help solve it.
 
         There is much efficiency with information in an electronic form, but there are aspects that warrant caution. ESI is particularly sensitive to alteration or destruction. Simple acts such as turning a computer on or off could affect the integrity and availability of information.  Then of course there is the infamous "metadata," which is the aspect of ESI that contains non-obvious and usually invisible information describing the context of the ESI or other useful details. For these reasons, ESI must be collected and handled carefully to maintain the information's integrity.
 
         One obstacle for proper preparation has been insufficient technical explanations of the rules. This article will cover some of the technical aspects of the updated rules.
 
Rule 26(b)(2) - TN Rule 26.02
 
         This is known as the "two-tiered discovery" rule that divides ESI into two categories by whether it is "reasonably accessible."  The federal Rules Advisory Committee had the foresight to recognize that while some ESI is easy to retrieve, some ESI is difficult, expensive, or impossible to retrieve.  Easily accessible ESI includes documents from a file server and e-mail that has not been deleted.  ESI considered not reasonably accessible may include backup tapes from previous years or deleted information requiring forensic analysis to recover and reconstruct.  "Reasonable accessibility" is typically determined by the expense or burden required to gather the ESI. However, difficulty of accessing ESI alone will not necessarily shield parties from their obligation to produce this data.
 
 
Rule 26(f) - TN Rule 26.06
 
         The "meet and confer" requirement in this rule is where the ESI discovery process typically begins. There are many issues that should be addressed here to avoid disputes later. What ESI is available? Where is the ESI located? What will be preserved, and how? What are the parties' plans for discovery? In what format will data be provided?
 
         One of the most important preparation steps is determining who, for each party, is most knowledgeable about the ESI systems involved. The values this resource can provide are:
 
·   Developing or providing a data map of the ESI systems
·   Providing data retention policies
·   Backup and system recovery plans
·   Locations of email    
·   Locations of other relevant data
·   Plans for preservation
·   Justifications for data that is not "reasonably accessible"
 
Rule 34(b) - TN Rule 34.02
 
         This rule permits the requesting party to specify the form or forms of production in which it wants ESI produced. The responding party must also state the form that it intends to use for producing ESI. If the requesting party does not specify a form, or if the responding party objects to the requested form, the Court will resolve the dispute. The purpose of this rule is to prevent efforts to convert and produce ESI in a format that is difficult to use.  For example, producing thousands of e-mails in non-searchable PDFs is a potential practice that this rule addresses.
 
Rule 37(f) - TN Rule 37.06
 
         This "Safe Harbor" rule provides that "absent exceptional circumstances" a court may not impose sanctions on a party "for failing to provide ESI lost as a result of routine, good faith operation of an electronic information system."  The rule recognizes the reality that some computer systems routinely alter and delete information without specific direction from an operator, and that companies may have reasonable and appropriate policies in place that automate this process.
 
         However, a party cannot exploit the routine operation of an information system to thwart discovery by allowing a system to continue to destroy information that it is required to preserve. A "good faith" effort would require a party that is in, or reasonably anticipates, litigation to take steps to prevent further loss of information.  This has given rise to what is called the "litigation hold."
 
         While parties were pleased that the safe harbor prevents them from retaining information perpetually, there are a couple of caveats.  If ESI or other information is routinely purged based on age, then that should occur pursuant to a documented and approved ESI management policy.  And that policy should include a specific "litigation hold" procedure that provides for appropriately tailored suspension of the policy when litigation is reasonably foreseeable.
 
For companies that are not prepared for eDiscovery, the time has arrived. A provocative analogy is that it is typical for a company to budget, plan, and test their disaster recovery plans in preparation for the chance of a disaster. After both the Federal and Tennessee Rules are in place requiring eDiscovery, one can almost guarantee your client that an eDiscovery request will come before a disaster.  To complicate matters, courts like the one in the famous Zubulake v. UBS Warburg dispute now routinely give attorneys the duty to take affirmative steps to monitor compliance and ensure that all sources of discoverable information are identified and searched.  Attorneys who fail to do so have been sanctioned, sometimes severely.
 
My most practical suggestion is that you begin working with your clients now to obtain the information outlined in the "Meet and Confer" section above.  Studies have shown that properly planning for eDiscovery before it occurs can save companies up to 40% of the costs.  In this economic climate, that kind of savings will be most welcome.
 
Bill Dean is founder of Forensic Discoveries (a division of Sword & Shield Enterprise Security), specializing in Electronic Discovery and Digital Forensics

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Keeping an eye on Net use and e-mails can prevent litigation

Google cheat view

Sometimes technology isn't so great.