Discovery in the Real World
It is becoming increasingly more common for the costs of litigation to be discovery costs. This is largely the result of what is known as electronically stored information or “ESI”. Most discovery requests involving ESI are requests for production of documents.
This form of discovery requests that the other party produce documents. For instance, a request may state: “Produce all documents evidencing the agreement between the parties.” In the past, the responding party would go to their filing cabinet, look for the file, and then make copies of the responsive documents. These might include a letter or facsimile requesting a quote, the Pricing Quote and cover letter, a work order, a bill of lading and then the invoice(s) for the work performed.
Today, many if not all responsive documents would be contained not in a file or in a cabinet, but stored on a computer or other device. These same records are ESI and might include text messages and e-mails leading up to the request for the quote. The quote may have never been printed, but prepared as a Word, WordPerfect, Excel or other word-processing document, converted to .pdf in Acrobat and then e-mailed back to the prospective customer. The customer then may have simply e-mailed the quote back, and the shipping documents completed in the shipper’s website, with the invoice generated in the shipper’s bookkeeping program, and then e-mailed to the customer. If a contract was heavily negotiated, the document may have been altered and revised in a series of “redlined” document exchanges.
All these ESI documents must first be located and then produced, either by printing them, converting them to .pdf and e-mailing them, or by downloading them onto a storage device (disk or thumb-drive) and sending it to the opposing counsel.
Time and time again parties with a discovery request are facing a Motion to Compel because they did not locate all the ESI that is responsive to the document request. Preparation of the Motion, the response, hearings, and the actual time spent locating the ESI is costly and time consuming.
In litigation, it is highly likely that we will be served with a request for production of documents. At the start of any contemplated case, you should implement a plan for preservation of ESI. No relevant ESI or other documents should be destroyed. All devices where relevant ESI may be found should be preserved. After litigation is initiated, no device (computer, laptop, tablet, or phone) should be discarded and all contents preserved, including worn out hard drives and old phones. If you’re going to replace a phone, make sure its contents are copied and preserved before trading it in.
A lesson learned:
I once had a case in which the Plaintiff had claimed it had sent an e-mail to the Defendant. The Defendant searched and searched for the missing e-mail and never found it. The Defendant even had their IT support guy do a remote computer search and found nothing. In response, the Plaintiff filed a Motion to Compel and for their forensic expert to make a certified forensic copy of the Defendant’s entire computer system. Although this request was clearly overly broad and would result in the Plaintiff’s computer expert having unlimited access to everything on the Defendant’s computers, the Court most likely would have ordered the forensic examination with certain restrictions and limitations.
Facing the legal challenge, the Defendant hired its own forensic expert to perform the search at significant expense. After much expense the e-mail was actually found to have been on the Defendants computer system. While there was no definitive explanation, it is likely that the e-mail was automatically sent to the systems “junk folder” and later “trashed”. However, “trashing” or deleting an electronic document does not actually remove it forever from the hard drive of the device. The Court heard the evidence and awarded the Plaintiff $7,000.00 in attorney’s fees for the necessity for the Motions to obtain the missing e-mail.
What is relevant evidence:
A party may obtain discovery regarding matters that are not privileged and are relevant to the subject matter of the pending action. Many do not understand what relevant evidence exactly is. “Relevant” in litigation is a legally defined term. Relevant evidence is any evidence that has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
The information sought in discovery need not be admissible, however; it need only be reasonably calculated to lead to the discovery of admissible evidence. Although the scope of discovery is broad, it is limited by the legitimate interests of the opposing party in avoiding overly broad requests, harassment, or disclosure of privileged information. Discovery may not be used as a fishing expedition. Therefore, discovery requests must be reasonably tailored to include only matters relevant to the case.
It should not be up to the party to determine whether any evidence is relevant or privileged. Those determinations should be left to the attorney. The party should locate and provide to his or her attorney all documents (ESI and paper) that has any connection to the issues involved between the parties. The attorney can then determine what is privileged and what is irrelevant and make the appropriate objections to the request and assert the appropriate privilege.
Your search should include all devices and other locations where the requested documents may be located. Professional computer expert help should be sought where the database if voluminous. An expert can help with search terms to aid in the device search.
In summary, look past the traditional ideas of producing documents in litigation. Remember that documents responsive to a request may be found on many devices and in many forms. Consult with your attorney about who within an organization may have responsive documents, or versions thereof, and what devices may contain those documents. Don’t forget e-mails and text messages. A thorough understanding of the evidence involved in a case can save you thousands down the road.
For more information about ESI discovery please contact Charles E. Lobb, Jr. at Murray | Lobb, PLLC.