Inside The Rules

The proposed amendments to the Federal Rules of Civil Procedure (FRCP) may be among the most significant changes ever to the code, simply because electronic discovery affects nearly every commercial litigation matter filed daily in the United States. Digital evidence has changed the litigation arena like no other evidentiary influence ' often turning what would otherwise be a nominal tactical dispute into the decisive battle in an entire lawsuit.

Most litigators and others connected to the activities of e-discovery agree that electronic discovery issues are complex and expensive. This premise is partially echoed in the report of the Civil Rules Advisory Committee. The Committee said on pages 2, 7 and 8 of its report that discovery of electronic information “is “more burdensome, costly, and time-consuming” than traditional discovery. The report also noted that:

There is great uncertainty as to whether and when a party may continue some or all of the routine recycling or overwriting functions of its computer system without risk of sanctions. Suspension of such operations can be prohibitively expensive and burdensome, and can result in the accumulation of duplicative and irrelevant data that must be reviewed and produced, making discovery more expensive and time-consuming. (See also, pp. 3, 17 of the report, and pp. 11 and 18 of the proposed amendments.)

The proposed rules take on issues of accessibility and adequate preservation, as well as the burden and cost of review. In addition, the proposed Rule 26(f) change calls for a discovery planning conference by the parties to discuss electronic discovery issues. To some extent, unfortunately, the proposed rule changes lag behind technological advances in business environments. For example, in the very early years of electronic discovery, there may have been occasions where draconian measures were taken to restore data ' particularly backup data. In recent years, however, it's no longer necessary to restore every backup tape or blindly restore “sample” tapes.

Today, an experienced electronic-discovery specialist with knowledge of enterprise technology can target backup media containing responsive data sources through interviews and a review of existing documentation (such as network security access logs). Once responsive locations are identified, the backup can be segregated, preserved and tagged for further review. Most backup software used in today's businesses provides detailed indices displaying files and their location on the backup media. As a result, it is much easier to catalog and select responsive data from backup tapes and backup drives. This often obviates the need for the expensive and time-consuming wholesale restoration, and review, of back- up tapes.

Other technological changes are creating new pressures. The proposed rule changes do not address, for instance, the enormous volume of data found in most business environments. Our new millennium's “data tsunami” requires as much attention as the older issue of backup tapes; however, no set of rules can be expected to keep up with fast-moving technology. Fortunately, the Committee has given us one proposed rule change that may make the others unneccessary. Amending Rule 26(f) would require parties to discuss during their meet-and-confer sessions in these instances:

• Any issues relating to disclosure or discovery of electronically stored information, including the form in which it should be produced;
• Whether they can agree to production on terms that protect against privilege waiver; and
• Any issues relating to the preservation of discoverable information (including electronically stored information).

Discussion of the topics outlined above at an early meet-and-confer session will go a long way to clearing e-discovery's “fogs of war.” Full disclosure, reasonable requests for targeted data and willingness to compromise are the best tools available to attorneys in dealing with these issues. I would add two additional components to the meet-and-confer session:

• The nature and volume of material to be produced, including data sources, data types, date and time frames, and stipulations as to what constitutes duplicate or “near duplicate” data; and
• The drafting of a mutually agreed on glossary of terms to be used throughout the discovery process.

Using proposed Rule 26(f) as a checklist for electronic discovery enables responding parties to map out a process for identifying, preserving and producing computer-based documents. It also assists in preventing requesting parties from placing an undue burden on the producing party, by making far-flung requests, or creating an endless series of “add-on” tasks.

Other provisions and considerations follow.

Disclosure and Form of Production

It's strongly recommended that qualified technical personnel or experts not only advise, but also actively participate, in the discussion concerning identification and production of e-documents. Even for counsel possessing advanced technological skills, the use of in-house technical personnel, information-technology specialists, and outside experts ' or a situation in which these professionals would be conferred with together ' will ensure that the information-exchange is accurate, usable and complete. Because technology changes rapidly, and because parties may have computing issues unique to their environments, active participation by technology experts can facilitate development of an accurate inventory of potentially responsive data, as well as allow experts to address issues surrounding preservation, form of production and accessibility.

As noted in the Manual for Complex Litigation, (4th) '11.423, the court should encourage counsel to “produce data in formats and on media that reduce the transport and conversion costs, maximize the ability of all parties to organize and analyze the data during pretrial preparation, and ensure usability at trial.” Many factors bear on how to interpret this guidance, including how the data are maintained in the normal course of business, what is a practical and usable form of production, and each party's idea of how it can best organize and analyze the data. Ideally, parties will agree on the format(s) of production appropriate to the case at hand, rather than attempt to apply a common standard to all data. For example, while conversion of electronic data to a common format (most typically .TIFF or .PDF images and text) may sometimes be desirable from a review perspective, it may also be cost-prohibitive because of volume, or impractical for certain types of data, such as databases. Additionally, production of the native file is sometimes necessary to ensure complete and accurate production. This is especially true when dealing with certain types of files, including spreadsheets, complex or compound files (such as Lotus Notes and Microsoft Exchange) and any other files containing embedded data. Embedded data is information that is generally hidden but that is an integral part of a computer file, such as track changes or comments. Metadata, on the other hand, is information about a file, including its creation date, size and other similar historical and practical user information. While some metadata is routinely extracted during a conversion process to .TIFF and text, embedded data is not, so it's available only in the original, or native, file.

Review and Privilege

Review methodology has traditionally been the purview of the producing party. Now, increasing cost-sharing efforts have opened the door for the requesting party to become actively involved in the methods, services and tools used to review electronic data prior to production. Options such as native file review, keyword searching, concept-based review tools and on-line repositories may be considered. Here again, technological advances will continue to shape the process, so parties have an opportunity to work together to reduce the cost and burden of review by discussing them early on. Good technical and expert advice at this stage will nearly always help to minimize these costs. Also, consider mechanisms that will allow speedy review of electronic documents without creating an undue burden to review all metadata, including the option of a stipulation of non-waiver.

Preservation

Failure to agree on a preservation protocol, or claims of spoliation, has in many instances been caused simply by an inability of one party to understand the scope and nature of the data collection. An inventory of potentially responsive data lays a critical foundation for dialogue regarding timing of discovery, collection methods and costs. The inventory should be focused on data related to the issues, parties and timeframes pertinent to the litigation. It should be designed to capture information regarding all likely sources and types of relevant data that would be subject to discovery.

The data inventory should contain enough detail regarding retention policies and procedures to enable the parties to reach common ground on preserving what is necessary while not unduly disrupting the responding party's ability to do business. This is particularly true when the responding party is a larger business, perhaps a large partnership, group of subsidiaries or conglomerate. In this case, knowledge of enterprise computing systems is also a prerequisite to any discussion of burden. An enterprise computing system is most often a mainframe- or minicomputer-based system designed to manage major business processes. For example: transaction processing for a national retailer, personnel systems for multi-office corporations or banking systems.

Nature and Volume of Data

The format and location of responsive data determine the ease or difficulty of access and review. Combining this information with knowledge regarding the volume of data to process allows the parties to create their electronic discovery “time clock.” It's critical to estimate accurately the time required to collect, process, review and produce computer-based documents. A look at some of the elements of the process follows.

Nature of the data. Components of an e-discovery data inventory may include identification of the “nature” of the responsive data, eg, not just the type of data, but an identification of the data's format and location. This is often phrased in the discussion of “accessible vs. inaccessible data.” For example, data types may include e-mail, word-processed documents and spreadsheets. Data sought may be in an active format (such as online data), or in a format that requires more processing (such as deleted data). Data may be located in a custodial and non-custodial data store, e-mail servers, shared servers, Web servers, desktop and laptop computers, backup tapes and other media. Keep in mind that a custodian is typically a person. Non-custodial data is data that is either shared by a number of people nor is “owned,” or managed, by the corporate entity. Examples of noncustodial data include enterprise databases, management software and workgroup libraries.

Volume of data. A major factor affecting the volume of data to process is the presence of large numbers of duplicate and near-duplicate copies. The volume of electronic documents presented for review can easily increase as much as 10- or 20-fold if duplicates and near-duplicates aren't eliminated early. Duplicate documents are typically defined as exact copies. The source of the document may or may not be taken into account. Studies have shown that roughly 70% of documents in a corporate environment are duplicate or near-duplicates. For example a .PDF version of a Microsoft Word file would be considered a “near-duplicate” ' same content, but different file format. Technologies exist to eliminate exact and near-duplicates, and parties should be encouraged to examine ways to cull these additional documents from the relevant document groups prior to processing and review.

Glossary of Terms

The benefit of a common glossary of terms is self-evident. Parties may find themselves unable to reach agreement on discovery issues merely because they don't fully understand technical terminology. By first ensuring this common understanding, parties may move more quickly through the remaining elements of the meet-and-confer protocol. Once a basic vocabulary has been established, new terms can be added during the course of discovery as the facts and nature of the case warrant.

The future of e-discovery doesn't necessarily lie in the proposed changed rules of civil procedure, or in the advancement of technology. Rather, technical knowledge combined with an ability to compromise may be all that is needed to master the game. Not such an impossible goal, is it?

The proposed amendments to the Federal Rules of Civil Procedure (FRCP) may be among the most significant changes ever to the code, simply because electronic discovery affects nearly every commercial litigation matter filed daily in the United States. Digital evidence has changed the litigation arena like no other evidentiary influence ' often turning what would otherwise be a nominal tactical dispute into the decisive battle in an entire lawsuit.

Most litigators and others connected to the activities of e-discovery agree that electronic discovery issues are complex and expensive. This premise is partially echoed in the report of the Civil Rules Advisory Committee. The Committee said on pages 2, 7 and 8 of its report that discovery of electronic information “is “more burdensome, costly, and time-consuming” than traditional discovery. The report also noted that:

There is great uncertainty as to whether and when a party may continue some or all of the routine recycling or overwriting functions of its computer system without risk of sanctions. Suspension of such operations can be prohibitively expensive and burdensome, and can result in the accumulation of duplicative and irrelevant data that must be reviewed and produced, making discovery more expensive and time-consuming. (See also, pp. 3, 17 of the report, and pp. 11 and 18 of the proposed amendments.)

The proposed rules take on issues of accessibility and adequate preservation, as well as the burden and cost of review. In addition, the proposed Rule 26(f) change calls for a discovery planning conference by the parties to discuss electronic discovery issues. To some extent, unfortunately, the proposed rule changes lag behind technological advances in business environments. For example, in the very early years of electronic discovery, there may have been occasions where draconian measures were taken to restore data ' particularly backup data. In recent years, however, it's no longer necessary to restore every backup tape or blindly restore “sample” tapes.

Today, an experienced electronic-discovery specialist with knowledge of enterprise technology can target backup media containing responsive data sources through interviews and a review of existing documentation (such as network security access logs). Once responsive locations are identified, the backup can be segregated, preserved and tagged for further review. Most backup software used in today's businesses provides detailed indices displaying files and their location on the backup media. As a result, it is much easier to catalog and select responsive data from backup tapes and backup drives. This often obviates the need for the expensive and time-consuming wholesale restoration, and review, of back- up tapes.

Other technological changes are creating new pressures. The proposed rule changes do not address, for instance, the enormous volume of data found in most business environments. Our new millennium's “data tsunami” requires as much attention as the older issue of backup tapes; however, no set of rules can be expected to keep up with fast-moving technology. Fortunately, the Committee has given us one proposed rule change that may make the others unneccessary. Amending Rule 26(f) would require parties to discuss during their meet-and-confer sessions in these instances:

• Any issues relating to disclosure or discovery of electronically stored information, including the form in which it should be produced;
• Whether they can agree to production on terms that protect against privilege waiver; and
• Any issues relating to the preservation of discoverable information (including electronically stored information).

Discussion of the topics outlined above at an early meet-and-confer session will go a long way to clearing e-discovery's “fogs of war.” Full disclosure, reasonable requests for targeted data and willingness to compromise are the best tools available to attorneys in dealing with these issues. I would add two additional components to the meet-and-confer session:

• The nature and volume of material to be produced, including data sources, data types, date and time frames, and stipulations as to what constitutes duplicate or “near duplicate” data; and
• The drafting of a mutually agreed on glossary of terms to be used throughout the discovery process.

Using proposed Rule 26(f) as a checklist for electronic discovery enables responding parties to map out a process for identifying, preserving and producing computer-based documents. It also assists in preventing requesting parties from placing an undue burden on the producing party, by making far-flung requests, or creating an endless series of “add-on” tasks.

Other provisions and considerations follow.

Disclosure and Form of Production

It's strongly recommended that qualified technical personnel or experts not only advise, but also actively participate, in the discussion concerning identification and production of e-documents. Even for counsel possessing advanced technological skills, the use of in-house technical personnel, information-technology specialists, and outside experts ' or a situation in which these professionals would be conferred with together ' will ensure that the information-exchange is accurate, usable and complete. Because technology changes rapidly, and because parties may have computing issues unique to their environments, active participation by technology experts can facilitate development of an accurate inventory of potentially responsive data, as well as allow experts to address issues surrounding preservation, form of production and accessibility.

As noted in the Manual for Complex Litigation, (4th) '11.423, the court should encourage counsel to “produce data in formats and on media that reduce the transport and conversion costs, maximize the ability of all parties to organize and analyze the data during pretrial preparation, and ensure usability at trial.” Many factors bear on how to interpret this guidance, including how the data are maintained in the normal course of business, what is a practical and usable form of production, and each party's idea of how it can best organize and analyze the data. Ideally, parties will agree on the format(s) of production appropriate to the case at hand, rather than attempt to apply a common standard to all data. For example, while conversion of electronic data to a common format (most typically .TIFF or .PDF images and text) may sometimes be desirable from a review perspective, it may also be cost-prohibitive because of volume, or impractical for certain types of data, such as databases. Additionally, production of the native file is sometimes necessary to ensure complete and accurate production. This is especially true when dealing with certain types of files, including spreadsheets, complex or compound files (such as Lotus Notes and Microsoft Exchange) and any other files containing embedded data. Embedded data is information that is generally hidden but that is an integral part of a computer file, such as track changes or comments. Metadata, on the other hand, is information about a file, including its creation date, size and other similar historical and practical user information. While some metadata is routinely extracted during a conversion process to .TIFF and text, embedded data is not, so it's available only in the original, or native, file.

Review and Privilege

Review methodology has traditionally been the purview of the producing party. Now, increasing cost-sharing efforts have opened the door for the requesting party to become actively involved in the methods, services and tools used to review electronic data prior to production. Options such as native file review, keyword searching, concept-based review tools and on-line repositories may be considered. Here again, technological advances will continue to shape the process, so parties have an opportunity to work together to reduce the cost and burden of review by discussing them early on. Good technical and expert advice at this stage will nearly always help to minimize these costs. Also, consider mechanisms that will allow speedy review of electronic documents without creating an undue burden to review all metadata, including the option of a stipulation of non-waiver.

Preservation

Failure to agree on a preservation protocol, or claims of spoliation, has in many instances been caused simply by an inability of one party to understand the scope and nature of the data collection. An inventory of potentially responsive data lays a critical foundation for dialogue regarding timing of discovery, collection methods and costs. The inventory should be focused on data related to the issues, parties and timeframes pertinent to the litigation. It should be designed to capture information regarding all likely sources and types of relevant data that would be subject to discovery.

The data inventory should contain enough detail regarding retention policies and procedures to enable the parties to reach common ground on preserving what is necessary while not unduly disrupting the responding party's ability to do business. This is particularly true when the responding party is a larger business, perhaps a large partnership, group of subsidiaries or conglomerate. In this case, knowledge of enterprise computing systems is also a prerequisite to any discussion of burden. An enterprise computing system is most often a mainframe- or minicomputer-based system designed to manage major business processes. For example: transaction processing for a national retailer, personnel systems for multi-office corporations or banking systems.

Nature and Volume of Data

The format and location of responsive data determine the ease or difficulty of access and review. Combining this information with knowledge regarding the volume of data to process allows the parties to create their electronic discovery “time clock.” It's critical to estimate accurately the time required to collect, process, review and produce computer-based documents. A look at some of the elements of the process follows.

Nature of the data. Components of an e-discovery data inventory may include identification of the “nature” of the responsive data, eg, not just the type of data, but an identification of the data's format and location. This is often phrased in the discussion of “accessible vs. inaccessible data.” For example, data types may include e-mail, word-processed documents and spreadsheets. Data sought may be in an active format (such as online data), or in a format that requires more processing (such as deleted data). Data may be located in a custodial and non-custodial data store, e-mail servers, shared servers, Web servers, desktop and laptop computers, backup tapes and other media. Keep in mind that a custodian is typically a person. Non-custodial data is data that is either shared by a number of people nor is “owned,” or managed, by the corporate entity. Examples of noncustodial data include enterprise databases, management software and workgroup libraries.

Volume of data. A major factor affecting the volume of data to process is the presence of large numbers of duplicate and near-duplicate copies. The volume of electronic documents presented for review can easily increase as much as 10- or 20-fold if duplicates and near-duplicates aren't eliminated early. Duplicate documents are typically defined as exact copies. The source of the document may or may not be taken into account. Studies have shown that roughly 70% of documents in a corporate environment are duplicate or near-duplicates. For example a .PDF version of a Microsoft Word file would be considered a “near-duplicate” ' same content, but different file format. Technologies exist to eliminate exact and near-duplicates, and parties should be encouraged to examine ways to cull these additional documents from the relevant document groups prior to processing and review.

Glossary of Terms

The benefit of a common glossary of terms is self-evident. Parties may find themselves unable to reach agreement on discovery issues merely because they don't fully understand technical terminology. By first ensuring this common understanding, parties may move more quickly through the remaining elements of the meet-and-confer protocol. Once a basic vocabulary has been established, new terms can be added during the course of discovery as the facts and nature of the case warrant.

The future of e-discovery doesn't necessarily lie in the proposed changed rules of civil procedure, or in the advancement of technology. Rather, technical knowledge combined with an ability to compromise may be all that is needed to master the game. Not such an impossible goal, is it?