On September 1, 2012, Florida's new electronic discovery rules went into effect. The purpose of David Steinfeld’s two-part article is to give people who are unfamiliar with electronic discovery, a basic understanding of the concepts, terms, and applications of this "brave new world". Part One of the article provides the reader with a basic understanding of electronic discovery, the key terminology used, and examines some of the technology impacting this field. Part Two explores the technology in more detail, addresses the defensibility of the technology, and concludes with how this affects the reader.
At its simplest form, electronic discovery is the process of amassing and producing the electronically stored information that companies previously kept in paper format. E-discovery will not obviate existing and established paper discovery; it will compliment it.
E-discovery has been an integral part of civil cases in the federal courts for several years. There is a growing body of federal case law addressing e-discovery, as well. It is important to note, however, that Florida's new State Court E-discovery Rules are slightly different from the Federal Rules, so the federal cases cited must apply to the same concepts contained in Florida's new Rules. With the new Rules, we will see CLEs, seminars, and White Papers on these differences, but the two broad ones are that the new Florida Rules do not have a mandatory "meet and confer" requirement and lack the sanctions components of the Federal Rules.
The pace of technological developments in the past few years is nothing short of astonishing. While technology exists to aid in sorting data collected or provided from a client and third-parties, participant in the e-discovery process must also be aware that technology exists to assist them in preserving, maintaining, and producing electronically stored information. It is also never too early to begin discussing a litigation hold policy and developing internal training strategies for employees and contractors to avoid the inadvertent loss of important electronically stored information.
Whatever technology a business ultimately chooses to assist it in handling and producing ESI, it will be faced with a decision of how much control to release to the computer/software "brain". At present, this is a hot button topic in the federal courts and has been addressed in several recent federal opinions. Software that assists in searching voluminous data that allows the software to make decisions as to relevance has been referred to as "computer assisted research", “technology assisted review”, and "predictive coding". This is in contrast to technology that utilizes a different method of searching, such as keywords, whereby the software merely identities those pre-defined keywords in documents and leaves the ultimate decision on responsiveness to the practitioner. Obviously, the first method is arguably more sophisticated programming, but its process must be reliable in order to be defended to a Court later if the issue arises, which leads to the issue of defensibility.
Although, at present, Florida’s Courts may be in somewhat uncharted waters given that her E-Discovery Rules are so new, it is foreseeable from parallel developments in federal cases that the method by which ESI was processed may be called into question in a particular case. While one argument may be that the culling method is protected work product, it may also be appropriate for a Court to inquire into the method used in a particular case to determine, for example, whether the imposition of sanctions is appropriate or in balancing which party should bear the costs of production from the party or a third-party.
In selecting software to assist in e-discovery or a third-party vendor to perform this task, participants in the process should inquire as to the methodology employed in the software and its track record to avoid a potentially costly situation later where one is called upon to defend the methodology used in production. That is not to imply that computer assisted review or predictive coding is somehow inappropriate or untested technology, but simply that parties must be aware of the technology they are using no different than understanding the methodology of an expert they would employ.
This brings us to the all-important question of why should anyone care about any of this. E-discovery will become an integral component to civil discovery and with it the real potential for a wide range of sanctions.
You may have heard recently in the news about a case in Miami in which relevant and critical documents were not produced and the managing partner of a fairly large and well-respected law firm was called before a Federal Judge to explain why. In the now infamous J-M Manufacturing case in California, a large, national law firm was sued for malpractice as a result of inadvertently disclosing privileged documents in e-discovery.
These sanctions may also directly impact an attorney, such as the case in Virginia State Court, where the attorney was fined over $500,000 for instructing his client to remove and delete photos from the client's Facebook profile that were damaging to the client in the litigation. Articles on that case report that the attorney no longer practices law as a result of that sanction. Additionally, in the often cited 2008 Qualcomm case from California, the court imposed an $8.5 Million sanction for intentionally secreting or recklessly disregarding relevant documents in e-discovery.
This "brave new world" of e-discovery is here to stay and must be embraced and integrated into the practices of all Florida civil litigation attorneys and participants in that process. It is conceptually not that different from traditional discovery. Disregarding it, however, can be perilous and costly, while mastering its nuances can make an attorney more efficient, cost effective, and provide a better service to his or her clients.