Managing Electronic Evidence

(Editor's Note: With the FRCP amendments on e-discovery becoming effective on Dec. 1, this issue features articles, including this one, that address areas of critical concern for corporate attorneys.)

Discovery demands on in-house legal staff have changed drastically in recent years. Historically, complying with subpoenas and document production requests were quotidian chores for in-house legal staff. After receiving a complaint, counsel's office issued a standard 'document hold' to affected employees and directed that those involved in the case preserve their files and not destroy anything. Questions might arise, but they were manageable. What must be disclosed? What documents are privileged? How long will it take to retrieve documents from storage? How many staff hours will complying require? How much will it cost? Who bears the cost? Which discovery requests should be challenged?

New Questions

In the brave new world of electronic data, however, the landscape has changed dramatically. And thus, so have the questions. How do you successfully preserve electronic evidence? How can the counsel's office effectively issue a 'document hold' when the employees may have little or no control over the documents and technology? And though answers are given, with the changes in law and technology, they are quickly obsolete.

When faced with a discovery request, in-house counsel might refer generally to the Federal Rules of Civil Procedure (FRCP) for answers. Rule 26 of the FRCP is broad, permitting discovery of 'any matter, not privileged, that is relevant to the claim or defense of any party.' Limitations exist where 'the burden or expense of the proposed discovery outweighs its likely benefit.' A court can protect the producing party from undue burden or expense, by conditioning discovery on the requesting party's payment of costs, based upon factors such as the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation and the importance of the proposed discovery in resolving the issues.

But cost shifting and sharing have changed considerably with the universal use of electronic records. The case of Rowe Entertainment Inc. v. William Morris Agency, Inc., 204 F.R.D. 421 (SDNY, 2002), created a multi-part test in allocating cost when electronic discovery is used. This was followed by Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003), a case that has been studied assiduously by in-house counsel. Judge Shira Scheindlin issued five decisions in various phases of Zubulake between 2003 and 2004. The case establishes that a company has a legal duty to suspend the ordinary procedures through which its computer systems handle, recycle, and dispose of electronic data, if the company reasonably anticipates litigation in the near future. Thus, even before service of a summons and complaint, a legal duty arises to preserve documents and data if they are relevant to a lawsuit that you reasonably anticipate may be filed in the future.

Further, failure to preserve electronic evidence after litigation 'is reasonably anticipated' can result in serious punitive consequences for evidence spoliation, ie, the negligent or intentional destruction or alteration of evidence. See, Silvestri v. General Motors Corp., 271 F.3d 583 (4^th Cir. 2001). The penalties can include: monetary sanctions; awards of attorneys fees and costs for the price of investigating and litigating document destruction; default judgments; dismissal of certain claims or defenses; or court instructions allowing a jury to draw adverse inferences about what destroyed evidence might have shown.

In Prudential Ins. Co. of Am. Sales Practices Lit., 169 F.R.D. 598, 615 (D.N.J. 1997), the company was fined $1 million for 'haphazard and uncoordinated approach to document retention' and failure to act quickly to prevent destruction of electronic data, resulting in prejudice to the other party. The case of In re: J.P. Morgan Securities Inc., SEC, Admin. Proc. File No. 3-11828 (Feb. 14, 2005), resulted in an agreement in which J.P. Morgan settled charges that they had not preserved e-mail for the required 3-year period and lacked an adequate e-mail preservation system or procedure. They agreed to pay a total of $2.1 million and consented to establishing procedures for complying with e-mail preservation laws and regulations, but did not admit or deny wrongdoing.

Another recent e-discovery case resulting in sanctions was Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005). See also, Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 674885 (Fla. Cir. Ct. Mar. 23, 2005). During the discovery phase, Morgan Stanley overwrote e-mails, failed to timely process hundreds of tapes, and failed to produce relevant e-mails and their attachments. The court concluded that Morgan Stanley sought to thwart discovery and 'gave no thought to using an outside contractor to expedite the process of completing the discovery, though it had certified completion months earlier; it lacked the technological capacity to upload and search the data at that time, and would not attain that capacity for months.' Based on this conduct, the court issued an adverse inference instruction, directing the jury to accept that Morgan Stanley helped defraud investors. Relying on that instruction, the jury awarded the plaintiffs over $600 million in compensatory damages.

E-discovery Is Part of the Job

In-house legal and IT departments and their staff can no longer treat electronic discovery as something unrelated to the day-to-day IT systems that companies maintain. Courts will not tolerate destruction of relevant electronic evidence. Since 90% of all communication takes place electronically, in-house counsel must implement procedures to effectively manage and control electronic documents. Failure to do so could be expensive.

In Zubulake V, the failure to preserve relevant e-mails and segregate backup tapes resulted in an award against the delinquent party for costs and attorneys fees in connection with discovery and instructions to the jury that they could infer that destroyed documents contained evidence that would have been unfavorable. The court said the party's duty to preserve relevant electronic information requires that, 'it suspend its routine document retention/destruction policy.' While the 'litigation hold' does not apply to inaccessible backup tapes maintained for disaster recovery, it would cover backup tapes that are accessible and used for information retrieval. The court summarized the duty that federal courts and many state courts impose on in-house and outside counsel. First, counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched. Second, counsel must guarantee that relevant documents are preserved by placing a litigation hold on the documents, the need to preserve the documents will be communicated, and relevant archival media will be safeguarded. Third, counsel must be certain that all relevant data is safe from inappropriate destruction, whether intentional or accidental. Forth, counsel must ensure that all relevant documents are produced when requested.

Safe Harbor

Rule 37(f) of the FRCP is a new section intended to protect parties when electronic evidence is lost in the routine, good faith operation of an electronic information system. This safe harbor is intended to strike a fair balance between litigation interests and legitimate business needs. Judicial discretion is built into the rule, which begins: 'absent exceptional circumstances sanctions will not be issued.' Thus, absent exceptional circumstances, one must assume that courts impose sanctions. Zubulake-hardened organizations are preserving data and discussing potential cases very early.

Cost Allocation

Under the FRCP, there is a growing area of law concerning the allocation of expenses involving the production of electronic information, which has proven difficult and expensive. The amendments to the FRCP that become effective on December 1 amend Rule 26 to provide protections to a responding party where compliance with a discovery request seeking electronic information would cause undue burden and cost. In addition to being ordered as an equitable matter, costs ” and in some instances attorneys' fees ” may be imposed as a sanction pursuant to the court's inherent powers, pursuant to statute or Rule 26(g). Rule 26(g) requires a party issuing a discovery request to certify 'to the best of the [party's] knowledge, information, and belief' and 'after reasonable inquiry' that the request is consistent with the rules and existing law; is not for any improper purpose, such as to increase needlessly the cost; and is neither unreasonable nor unduly burdensome or expensive.

Paperless Practice

Much of the information generated by American businesses today, such as e-mail and draft versions of documents, is never reduced to paper form. Some observers estimate that 20%-30% of electronic data never appears on paper. With most businesses now storing information in electronic form, a lawyer advising a corporate client must understand not only the law, but also (at least at a basic level) the technology of electronic data storage. Because of the high risks associated with retaining electronic documents, some companies have document-retention programs that periodically delete electronic documents. In-house counsel typically advise clients to be aggressive and thorough in this regard. One risk with document retention programs is that they will not be used consistently and uniformly throughout the company. Failure to preserve information consistently, company-wide, may create more problems than not saving any information.

In Metropolitan Opera Association, Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003), the union failed in its obligation to preserve or produce electronic documents. The court reprimanded the attorneys, saying they never gave adequate instructions as to the clients' discovery obligations or what constituted a 'document.' The attorneys knew the client had no document-retention system and yet never told them to implement a systematic procedure for production or retention of documents, including electronic documents. Finally, the court noted the error of counsel in allowing the client to delegate document production to a layperson who did not understand that a document included a draft or other non-identical copy, a computer file and an e-mail. Displeased with counsel's behavior, the court granted sanctions, found liability on the part of the union and ordered it to pay attorney fees.

Once a company is on notice of a possible criminal or civil investigation or dispute, the continued use of a system that regularly removes information may conflict with the duty to preserve evidence. In such a situation, electronic data (and sometimes even associated hardware) must be preserved like any other potential evidence. Purging electronic documents at that point is no different than shredding paper documents, and can subject the corporation to a range of consequences, including trial sanctions, sentencing enhancement, and independent criminal prosecution. Even the attorney may suffer sanctions.

Electronic evidence can provide a wealth of information about the inner workings of a corporation. Computers, and the various media in which computer-generated information is stored, provide a unique window into a company's strategies, business plans, product designs, analyses, projections, economic forecasts, statistics and data. Not only can computers quickly reveal information about undisclosed facts, but unguarded e-mails may yield telling glimpses into the subjective motives of a corporation's employees and officers. Electronic documents also typically include precise dates and times when documents were sent, received or edited; these can illuminate a chronology that would be obscure if the documents were in paper form.

Steps to Avoid Sanctions

So what do should in-house counsel do?

1. Counsel should become familiar with the company's IT architecture. Communicate with your IT department to learn about backup and recycling procedures and develop procedures for interrupting the automatic deletion of e-mail messages, electronic files, local hard drives, and backup tapes in the event of litigation. Counsel should be as familiar ' if not more so ' with the company's IT systems as with other parts of the business.

2. Counsel should find a liaison in the IT department that regularly works with the legal group and is familiar with litigation demands. The liaison will be a valuable resource for outside counsel because they will be able to explain the document retention and backup system for purposes of FRCP 30(b)(6) depositions. Rule 30(b)(6) allows a party to serve notice on a corporation requiring it to designate 'officers, directors, or managing agents, or other persons' to testify on its behalf about 'matters known or reasonably available to the organization.' The liaison will help to reduce costs associated with ongoing motions and court appearances because companies will not have to expend time and resources finding and educating a newly designated individual about these issues. The IT liaison will be crucial in helping to implement compliance, reducing the potential for spoliation if data is not properly preserved.

3. Counsel should work with IT to develop a plan for backing up and segregating priority data (the data likely to be discoverable from key players such as executives or human resources personnel). Many companies use at least five or six backup tapes daily, and the e-mail messages are interspersed with network programs, accounting data and infrastructure (such as the global address book). By prioritizing the daily data, companies can save money by collecting and processing the highest priority individuals first when responding to production requests. If data is saved on a priority basis, counsel will also be in a better position to advocate for data sampling or cost-shifting measures for non-priority data.

4. Counsel should ensure that IT understand and aid in maintaining a proper chain of custody. In the event of litigation, IT may be called on to handle a variety of media, including hard drives, PDAs and removable media (such as CDs, floppy disks, or DVDs). IT must maintain a documented chain of custody on these media, from the time the item is acquired until it is transferred out of IT's control. The chain of custody should indicate who possessed which media, at all times, and the reason for that possession. This will allow you to verify which tapes were transferred on a specific date, if data spoliation accusations later surface. A third-party vendor may need to take control of the data, removing it from the IT department to ensure that no one accidentally reuses or loses those tapes. Should any data be transferred to a vendor, you must be sure to document the chain of custody.

5. In placing a litigation hold, instruct key managers, IT staff and impacted employees and those likely to be witnesses to gather and segregate electronic copies of all potentially relevant accessible files, whether officially 'active' or 'archived', and/or create 'mirror' copies of actively stored information on computer hard drives, networks, laptops, personal digital devices, etc.

6. Segregate and secure appropriate backup or archival data in appropriate instances. If backup tapes for key players are stored apart from backup tapes for other employees, those for the key player should be kept apart from and protecting them from recycling.

7. During the litigation hold, counsel needs to find out if corporate information exists outside of the company's servers and systems. Even though you have a policy that says employees shouldn't e-mail documents home, you should assume that convenience has trumped compliance. There should be a protocol to interview each individual who may be a key player in particular litigation.

8. Remember that after the initial 'litigation hold' is in place, counsel has an ongoing duty to continuously and periodically remind the client and key witnesses of their ongoing document maintenance and preservation obligations. This includes preservation of relevant documents created after the commencement of litigation.

(Editor's Note: With the FRCP amendments on e-discovery becoming effective on Dec. 1, this issue features articles, including this one, that address areas of critical concern for corporate attorneys.)

Discovery demands on in-house legal staff have changed drastically in recent years. Historically, complying with subpoenas and document production requests were quotidian chores for in-house legal staff. After receiving a complaint, counsel's office issued a standard 'document hold' to affected employees and directed that those involved in the case preserve their files and not destroy anything. Questions might arise, but they were manageable. What must be disclosed? What documents are privileged? How long will it take to retrieve documents from storage? How many staff hours will complying require? How much will it cost? Who bears the cost? Which discovery requests should be challenged?

New Questions

In the brave new world of electronic data, however, the landscape has changed dramatically. And thus, so have the questions. How do you successfully preserve electronic evidence? How can the counsel's office effectively issue a 'document hold' when the employees may have little or no control over the documents and technology? And though answers are given, with the changes in law and technology, they are quickly obsolete.

When faced with a discovery request, in-house counsel might refer generally to the Federal Rules of Civil Procedure (FRCP) for answers. Rule 26 of the FRCP is broad, permitting discovery of 'any matter, not privileged, that is relevant to the claim or defense of any party.' Limitations exist where 'the burden or expense of the proposed discovery outweighs its likely benefit.' A court can protect the producing party from undue burden or expense, by conditioning discovery on the requesting party's payment of costs, based upon factors such as the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation and the importance of the proposed discovery in resolving the issues.

But cost shifting and sharing have changed considerably with the universal use of electronic records. The case of Rowe Entertainment Inc. v. William Morris Agency, Inc. , 204 F.R.D. 421 (SDNY, 2002), created a multi-part test in allocating cost when electronic discovery is used. This was followed by Zubulake v. UBS Warburg, LLC , 220 F.R.D. 212 (S.D.N.Y. 2003), a case that has been studied assiduously by in-house counsel. Judge Shira Scheindlin issued five decisions in various phases of Zubulake between 2003 and 2004. The case establishes that a company has a legal duty to suspend the ordinary procedures through which its computer systems handle, recycle, and dispose of electronic data, if the company reasonably anticipates litigation in the near future. Thus, even before service of a summons and complaint, a legal duty arises to preserve documents and data if they are relevant to a lawsuit that you reasonably anticipate may be filed in the future.

Further, failure to preserve electronic evidence after litigation 'is reasonably anticipated' can result in serious punitive consequences for evidence spoliation, ie, the negligent or intentional destruction or alteration of evidence. See, Silvestri v. General Motors Corp. , 271 F.3d 583 (4 th Cir. 2001). The penalties can include: monetary sanctions; awards of attorneys fees and costs for the price of investigating and litigating document destruction; default judgments; dismissal of certain claims or defenses; or court instructions allowing a jury to draw adverse inferences about what destroyed evidence might have shown.

In Prudential Ins. Co. of Am. Sales Practices Lit., 169 F.R.D. 598, 615 (D.N.J. 1997), the company was fined $1 million for 'haphazard and uncoordinated approach to document retention' and failure to act quickly to prevent destruction of electronic data, resulting in prejudice to the other party. The case of In re: J.P. Morgan Securities Inc., SEC, Admin. Proc. File No. 3-11828 (Feb. 14, 2005), resulted in an agreement in which J.P. Morgan settled charges that they had not preserved e-mail for the required 3-year period and lacked an adequate e-mail preservation system or procedure. They agreed to pay a total of $2.1 million and consented to establishing procedures for complying with e-mail preservation laws and regulations, but did not admit or deny wrongdoing.

Another recent e-discovery case resulting in sanctions was Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005). See also, Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 674885 (Fla. Cir. Ct. Mar. 23, 2005). During the discovery phase, Morgan Stanley overwrote e-mails, failed to timely process hundreds of tapes, and failed to produce relevant e-mails and their attachments. The court concluded that Morgan Stanley sought to thwart discovery and 'gave no thought to using an outside contractor to expedite the process of completing the discovery, though it had certified completion months earlier; it lacked the technological capacity to upload and search the data at that time, and would not attain that capacity for months.' Based on this conduct, the court issued an adverse inference instruction, directing the jury to accept that Morgan Stanley helped defraud investors. Relying on that instruction, the jury awarded the plaintiffs over $600 million in compensatory damages.

E-discovery Is Part of the Job

In-house legal and IT departments and their staff can no longer treat electronic discovery as something unrelated to the day-to-day IT systems that companies maintain. Courts will not tolerate destruction of relevant electronic evidence. Since 90% of all communication takes place electronically, in-house counsel must implement procedures to effectively manage and control electronic documents. Failure to do so could be expensive.

In Zubulake V, the failure to preserve relevant e-mails and segregate backup tapes resulted in an award against the delinquent party for costs and attorneys fees in connection with discovery and instructions to the jury that they could infer that destroyed documents contained evidence that would have been unfavorable. The court said the party's duty to preserve relevant electronic information requires that, 'it suspend its routine document retention/destruction policy.' While the 'litigation hold' does not apply to inaccessible backup tapes maintained for disaster recovery, it would cover backup tapes that are accessible and used for information retrieval. The court summarized the duty that federal courts and many state courts impose on in-house and outside counsel. First, counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched. Second, counsel must guarantee that relevant documents are preserved by placing a litigation hold on the documents, the need to preserve the documents will be communicated, and relevant archival media will be safeguarded. Third, counsel must be certain that all relevant data is safe from inappropriate destruction, whether intentional or accidental. Forth, counsel must ensure that all relevant documents are produced when requested.

Safe Harbor

Rule 37(f) of the FRCP is a new section intended to protect parties when electronic evidence is lost in the routine, good faith operation of an electronic information system. This safe harbor is intended to strike a fair balance between litigation interests and legitimate business needs. Judicial discretion is built into the rule, which begins: 'absent exceptional circumstances sanctions will not be issued.' Thus, absent exceptional circumstances, one must assume that courts impose sanctions. Zubulake-hardened organizations are preserving data and discussing potential cases very early.

Cost Allocation

Under the FRCP, there is a growing area of law concerning the allocation of expenses involving the production of electronic information, which has proven difficult and expensive. The amendments to the FRCP that become effective on December 1 amend Rule 26 to provide protections to a responding party where compliance with a discovery request seeking electronic information would cause undue burden and cost. In addition to being ordered as an equitable matter, costs ” and in some instances attorneys' fees ” may be imposed as a sanction pursuant to the court's inherent powers, pursuant to statute or Rule 26(g). Rule 26(g) requires a party issuing a discovery request to certify 'to the best of the [party's] knowledge, information, and belief' and 'after reasonable inquiry' that the request is consistent with the rules and existing law; is not for any improper purpose, such as to increase needlessly the cost; and is neither unreasonable nor unduly burdensome or expensive.

Paperless Practice

Much of the information generated by American businesses today, such as e-mail and draft versions of documents, is never reduced to paper form. Some observers estimate that 20%-30% of electronic data never appears on paper. With most businesses now storing information in electronic form, a lawyer advising a corporate client must understand not only the law, but also (at least at a basic level) the technology of electronic data storage. Because of the high risks associated with retaining electronic documents, some companies have document-retention programs that periodically delete electronic documents. In-house counsel typically advise clients to be aggressive and thorough in this regard. One risk with document retention programs is that they will not be used consistently and uniformly throughout the company. Failure to preserve information consistently, company-wide, may create more problems than not saving any information.

In Metropolitan Opera Association, Inc. v. Local 100 , 212 F.R.D. 178 (S.D.N.Y. 2003), the union failed in its obligation to preserve or produce electronic documents. The court reprimanded the attorneys, saying they never gave adequate instructions as to the clients' discovery obligations or what constituted a 'document.' The attorneys knew the client had no document-retention system and yet never told them to implement a systematic procedure for production or retention of documents, including electronic documents. Finally, the court noted the error of counsel in allowing the client to delegate document production to a layperson who did not understand that a document included a draft or other non-identical copy, a computer file and an e-mail. Displeased with counsel's behavior, the court granted sanctions, found liability on the part of the union and ordered it to pay attorney fees.

Once a company is on notice of a possible criminal or civil investigation or dispute, the continued use of a system that regularly removes information may conflict with the duty to preserve evidence. In such a situation, electronic data (and sometimes even associated hardware) must be preserved like any other potential evidence. Purging electronic documents at that point is no different than shredding paper documents, and can subject the corporation to a range of consequences, including trial sanctions, sentencing enhancement, and independent criminal prosecution. Even the attorney may suffer sanctions.

Electronic evidence can provide a wealth of information about the inner workings of a corporation. Computers, and the various media in which computer-generated information is stored, provide a unique window into a company's strategies, business plans, product designs, analyses, projections, economic forecasts, statistics and data. Not only can computers quickly reveal information about undisclosed facts, but unguarded e-mails may yield telling glimpses into the subjective motives of a corporation's employees and officers. Electronic documents also typically include precise dates and times when documents were sent, received or edited; these can illuminate a chronology that would be obscure if the documents were in paper form.

Steps to Avoid Sanctions

So what do should in-house counsel do?

1. Counsel should become familiar with the company's IT architecture. Communicate with your IT department to learn about backup and recycling procedures and develop procedures for interrupting the automatic deletion of e-mail messages, electronic files, local hard drives, and backup tapes in the event of litigation. Counsel should be as familiar ' if not more so ' with the company's IT systems as with other parts of the business.

2. Counsel should find a liaison in the IT department that regularly works with the legal group and is familiar with litigation demands. The liaison will be a valuable resource for outside counsel because they will be able to explain the document retention and backup system for purposes of FRCP 30(b)(6) depositions. Rule 30(b)(6) allows a party to serve notice on a corporation requiring it to designate 'officers, directors, or managing agents, or other persons' to testify on its behalf about 'matters known or reasonably available to the organization.' The liaison will help to reduce costs associated with ongoing motions and court appearances because companies will not have to expend time and resources finding and educating a newly designated individual about these issues. The IT liaison will be crucial in helping to implement compliance, reducing the potential for spoliation if data is not properly preserved.

3. Counsel should work with IT to develop a plan for backing up and segregating priority data (the data likely to be discoverable from key players such as executives or human resources personnel). Many companies use at least five or six backup tapes daily, and the e-mail messages are interspersed with network programs, accounting data and infrastructure (such as the global address book). By prioritizing the daily data, companies can save money by collecting and processing the highest priority individuals first when responding to production requests. If data is saved on a priority basis, counsel will also be in a better position to advocate for data sampling or cost-shifting measures for non-priority data.

4. Counsel should ensure that IT understand and aid in maintaining a proper chain of custody. In the event of litigation, IT may be called on to handle a variety of media, including hard drives, PDAs and removable media (such as CDs, floppy disks, or DVDs). IT must maintain a documented chain of custody on these media, from the time the item is acquired until it is transferred out of IT's control. The chain of custody should indicate who possessed which media, at all times, and the reason for that possession. This will allow you to verify which tapes were transferred on a specific date, if data spoliation accusations later surface. A third-party vendor may need to take control of the data, removing it from the IT department to ensure that no one accidentally reuses or loses those tapes. Should any data be transferred to a vendor, you must be sure to document the chain of custody.

5. In placing a litigation hold, instruct key managers, IT staff and impacted employees and those likely to be witnesses to gather and segregate electronic copies of all potentially relevant accessible files, whether officially 'active' or 'archived', and/or create 'mirror' copies of actively stored information on computer hard drives, networks, laptops, personal digital devices, etc.

6. Segregate and secure appropriate backup or archival data in appropriate instances. If backup tapes for key players are stored apart from backup tapes for other employees, those for the key player should be kept apart from and protecting them from recycling.

7. During the litigation hold, counsel needs to find out if corporate information exists outside of the company's servers and systems. Even though you have a policy that says employees shouldn't e-mail documents home, you should assume that convenience has trumped compliance. There should be a protocol to interview each individual who may be a key player in particular litigation.

8. Remember that after the initial 'litigation hold' is in place, counsel has an ongoing duty to continuously and periodically remind the client and key witnesses of their ongoing document maintenance and preservation obligations. This includes preservation of relevant documents created after the commencement of litigation.