Discovery in the Digital Age: Meeting the Challenges of Electronically Stored Information

Anyone who has been involved in a lawsuit understands that the discovery phase is critical. During discovery, each party investigates the claims of its opponents and requires them to produce all documents that support their respective positions. Traditionally, each responding party would produce a box or two containing paper documents that it intended to offer as evidence at trial. Today, with the advent of electronically stored information (ESI), the thought of examining a few hundred pages of documents seems quaint.

Most businesses now create and store all of their information electronically. E-mail, for example, is routinely stored in multiple locations: on the sender's hard drive, on central and backup servers, and on the recipients' computers and servers. Many of those servers are periodically backed up to tape. In addition, both the sender and recipients may review, edit and forward an e-mail or attachment from their personal laptops, tablets and smartphones. That original e-mail has now been stored and perhaps modified in multiple locations. If some or all recipients reply to the sender, the process swiftly multiplies.

It is not uncommon for millions of digital images to be produced in discovery in a single lawsuit. To complicate matters further, when a paper document is shredded, the document is irretrievable—end of story. Not so with ESI. Deleting an electronically stored e-mail, spreadsheet or other document simply means that space is available on the computer for overwriting. Until a file is actually overwritten, that deleted document can easily be recovered. Conversely, ESI can intentionally be destroyed if the hard drive or server containing the information is reformatted.

In recent years, courts have developed standards for preserving and collecting ESI. Judges frequently issue opinions regarding the duty of parties to ensure that relevant information is preserved and produced in a timely, efficient and cost-effective manner. If a party does not fulfill its ESI obligations, the consequences can be severe. In the Texas case of Green v. Blitz U.S.A., Inc., when a federal district court judge learned that the corporate defendant failed to produce certain electronically stored documents and preserve other information while the case was pending, he imposed sanctions of $250,000—a full year after the case settled. In imposing the sanction award, the judge said the company "made little, if any effort to discharge its electronic discovery obligations."

In response to these trends, Much Shelist has established an e-discovery task force that is monitoring developments in ESI and is ready to guide our clients in all aspects of the process, including the following:

• Preserving all information potentially relevant to a claim or lawsuit;
• Collecting information in an organized, efficient manner;
• Determining the scope of ESI to request from opposing parties and implementing appropriate steps to ensure compliance;
• Addressing privacy concerns associated with information stored by Facebook, Twitter and other social media websites;
• Evaluating the applicability of the attorney-client privilege;
• Analyzing metadata and other information hidden in ESI;
• Rebutting potential claims that evidence has been improperly withheld or destroyed; and
• Working with opposing counsel, the courts and outside vendors to reduce the cost of responding to requests for ESI.

The days of examining a handful of paper documents produced in discovery are over. Lawyers and clients alike must be prepared to meet the legal and technological challenges of ESI head on. If you are contemplating filing a lawsuit or have reason to believe your business may become involved in litigation, the best time to discuss your ESI obligations with counsel is before the case is filed.