November 29, 2019 BY Whitney Lay Greene
To the victor goes the spoliation? Best practices for eDiscovery and the preservation of electronically stored information
eDiscovery is the procedure by which parties involved in litigation preserve, collect, review, and exchange information in electronic formats in order to use that information as evidence. Unlike taking a deposition or attending a hearing, eDiscovery is not a single action, but a series of linked actions which begin prior to the commencement of litigation and continue until the electronic information is presented at trial (if the case gets that far).
Issues and trends in eDiscovery are certainly at the forefront of every law firm IT department's mind, but they should be in the forefront of the minds of lawyers, in-house counsel, and claims handlers too. Because many lawyers and claims handlers began their career before the internet or e-mail even existed, we frequently only consider eDiscovery issues in the middle of litigation once a major problem or dispute arises. At that point, the only choice is to play defense---often playing from behind--which a savvy plaintiff's attorney will be more than happy to exploit. Unfortunately, in these situations it is easy to see a good case “spoiled” by claims of spoliation of evidence.
Below are some practical tips to help lawyers (and in-house counsel and claims handlers) identify and preserve key eDiscovery evidence as early as possible. This will help avoid spoliation issues down the road and ensure that you are aware of any bad evidence at the outset so you can adjust your strategy accordingly. It is also a great opportunity for younger lawyers to establish an area of expertise and establish themselves as an invaluable resource for their firm.
Tip #1: Consider eDiscovery in all (or at least most) claims.
As a general consideration, lawyers should recognize that eDiscovery is not just an issue for large cases with high exposure. We should develop and implement eDiscovery protocols for most, if not all, cases and claims. After all, a spoliation sanction which results from the failure to preserve evidence can turn a small case into a big one or a winner into a loser. Moreover, it can be very difficult at the outset of a case to correctly identify which claims will lead to big exposure a year or two down the road. In addition, we must be mindful that the preservation of eDiscovery may be required-regardless of whether a preservation request specifically identifies electronically stored information (or “ESI”) as an item to be preserved. These days, virtually every case will involve documents that were stored electronically (notably-e-mail communications or text messages).
Tip #2: Identify potential sources of eDiscovery early.
Second, in terms of practical tips, evaluate potential sources of eDiscovery as early as possible--pre-suit is ideal. Sources to consider include: e-mail accounts, document management systems, websites, databases, third-party file share services (Dropbox, FileShare, etc.), cell phones, and computer hard drives. Other potential sources include instant messages and smart phone applications. Once identified, send a legal hold letter to all custodians of those potential data sources directing them to retain the ESI. However, simply directing custodians to preserve the relevant data by letter and hoping for the best is not sufficient. Instead, when feasible, it is advisable to take active steps to preserve data (even if you do not intend to produce it in discovery).
For example, forensic cell phone experts can inexpensively pull and preserve data from a cell phone in only a few minutes. Similarly, Outlook e-mail accounts can also be easily exported and saved in most instances by anyone with a reasonable working knowledge of the software. Obviously, you would not just turn over an employee's cell phone or entire inbox to opposing counsel, but preserving the data will eliminate any future arguments that important evidence was destroyed. Moreover, the extra effort on the pre-suit side of a claim will also speed up the discovery process once litigation ensues.
Of note, lawyers should not assume their clients (even large corporate clients) are familiar with the eDiscovery laws in their jurisdiction, are specifically aware of the types of documents which need to be preserved, and/or are also specifically aware of the key discovery issues in dispute in a particular claim or lawsuit. Accordingly, the best practice is to send a preservation letter to the client upon receipt of a file outlining what should be preserved and why.
Once the sources of documents are identified, evaluate the difficulty involved in harvesting those documents for preservation. This evaluation should include consideration of the file formats involved, the best transmission method for those file formats, and whether transmitting the files will alter the integrity of the data. If the technical expertise and/or effort required for harvesting exceeds the capabilities of your firm or organization, consider retaining a third-party vendor to assist. Lawyers and claims handlers should also be alert for signs that the client may need extra assistance identifying and preserving relevant data. Lack of experience with legal proceedings, disorganization, and lack of IT resources can all be potential red flags that the client may not have the requisite institutional knowledge and/or capability to identify and harvest ESI without additional help.
Tip #3 Know your obligations under the law.
eDiscovery rules are largely set by judicial precedent rather than statute. In Georgia courts, “[t]he duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party. Put another way, the duty to preserve arises when the alleged spoliator actually or reasonably should have anticipated litigation.” Cooper Tire & Rubber Co. v. Koch, 303 Ga. 336, 339, 812 S.E.2d 256, 261 (2018) (quoting Phillips v. Harmon, 297 Ga. 386, 393, 774 S.E.2d 596, 602 (2015)). The Federal Rules of Civil Procedure (FRCP) impose a similar duty to preserve evidence (including ESI) once litigation is reasonably anticipated. Fed. R. Civ. P. 37(e).
However, the FRCP also provide further guidance on how discovery (including ESI issues) should be handled. Specifically, in 2015, several amendments were made to the FRCP with the intention of making civil litigation more efficient. Among other things, these amendments require the parties to evaluate and discuss eDiscovery early on in the case, grant the court the power to streamline eDiscovery deadlines and proactively get the parties together to identify and narrow eDiscovery issues, and require that eDiscovery be proportional to the needs of the case. See, e.g., Fed. R. Civ. P. 1, 4, 16, 26, 34, and 37. Rule 37(e) also sets forth the guidelines for establishing spoliation and the remedies for the same.
Tip #4 Go on offense.
Last, evaluate opportunities to use eDiscovery as an offensive tool. Upon receipt of a preservation of evidence letter from a plaintiff’s attorney, consider sending a preservation of evidence letter to the plaintiff asking them to preserve important evidence in their possession. Potentially important sources of evidence are cell phones, cell phone applications, e-mail accounts, and social media accounts. If the claim involves an automobile or trucking accident, the airbag control module or electronic control module in the plaintiff’s vehicle can also be invaluable sources of information. Sending a preservation of evidence letter will lay the foundation for a claim of spoliation once suit is filed if the plaintiff fails to properly preserve the items requested.
Ultimately, like it, love it, or hate it, eDiscovery issues are here to stay. As business (and the business of litigation) continues to become increasing complex from a technological perspective, the number of sources of electronically stored information (and the problems that result when that data is not preserved) will only continue to grow. Accordingly, lawyers must make it a priority to educate themselves and their clients on proactively identifying relevant, electronically stored information and formulate protocols for ensuring reasonable steps are taken to preserve that data.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley