You will be hard pressed today to find someone who does not have an electronic footprint. Whether it’s email, social media, bank accounts, or simply owning a smartphone, almost every person creates an electronic trail. Knowing that these trails exist is crucial to any comprehensive litigation discovery plan, especially if electronically stored information (“ESI”) is relevant. This article lays out some reminders and warnings when preparing an electronic discovery (“E-discovery”) plan and evaluating the forms of discoverable materials relevant to a case.
Preparation of a Case
Pursuant to Rule 1.1 of the New York Rules of Professional Conduct, “A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Included within this rule’s comments is a provision that reads: “To maintain the requisite knowledge and skill, a lawyer should … keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.” For attorneys, there is an obligation to be knowledgeable about the technology used by clients, their law firms, and their legal offices, especially in anticipation of litigation.
First, it is important to understand one’s obligations when it comes to disclosure. With some exceptions, both the New York Civil Practice Law and Rules and the Federal Rules of Civil Procedure require parties in litigation to disclose any and all nonprivileged matters that are material and necessary to prosecute or defend an action. The test of materiality is one of usefulness and reason, and this rule extends to ESI as well.
Second, it is important that you know where to look for matters that are material and necessary to support your client’s claim(s). To achieve this goal, create an outline of questions you plan to pose to your client about their claim(s). The purpose of these questions is to develop your knowledge about potential adverse parties, the custody and location of important documents and materials, the method, content, and timing of communications between relevant parties, the types of technology, if any, used to effectuate those communications, and how said technology works. Although this is not an exhaustive list, it includes most questions that should be answered before filing a lawsuit.
Once your questions are composed, schedule a meeting with your client to evaluate the merit of the claim(s).
Evaluation of the Merits
The courts obligate counsel for all parties to consult prior to a preliminary or compliance conference about various topics, including discovery and any voluntary disclosure the parties agree will aid in early settlement of the matter. As such, understanding your client’s claims and having knowledge about the location of relevant documents, including ESI, in advance of consulting with opposing counsel is crucial.
When evaluating your client’s claim(s), you must determine whether metadata should be considered in your analysis. Metadata is relevant to the disclosure of ESI because it can contain the underlying characteristics, origins, and usage of an electronic document. Metadata is important for any action where the following are relevant: (1) location and custody of ESI and (2) file creation and modification dates. As such, when questioning your client about their claim(s), be sure to inquire about the retrieval process governing relevant ESI. For instance, ensure your law firm or legal office has the capability to review the file types produced by your client’s technology. When ESI is retrieved and can be reviewed in its original format, you are better able to see your client’s claim from their perspective and zealously advocate their claim(s) in a tribunal.
Once you understand the universe of materials available to your client, identify who controls them, learn where they may be located, and evaluate the discovery devices necessary to access the sought-out information. For example, when questioning your client, you may learn that your client retains a third-party vendor for ESI storage, including emails, text messages, and client files, or you may learn that the adverse party made certain admissions via voice memos, which are stored in Apple’s cloud database. In either scenario, this learned information could be the basis to issue a subpoena to the third-party vendor or to Apple to gain access to desired materials.
The Litigation Hold
Once the evaluation is complete, you should have a better idea whether litigation will ensue. If you reasonably anticipate litigation, you must issue and oversee the distribution of a written litigation hold notice. If you posed a thorough line of questioning to your client, you should have a list of adverse parties or non-parties who act as the custodian of important materials. These are the people and entities that should be contacted about the possibility of litigation and the requirement to protect and preserve material documents, including ESI and related metadata, from routine disposition. Please be aware that if you fail to issue a litigation hold notice at the proper time, you, your law firm, your legal office, or your client could be subject to sanctions for spoliation of evidence.
The Takeaway
As the world has grown more connected due to technological advances, the world of electronic discovery, too, has grown, and with this growth has come an increased obligation for attorneys to understand their client’s electronic footprint. Being strategic and purposeful in your preparation and evaluation of a case can make all the difference when the time comes to litigate the matter and engage in discovery.
Katherine T. McCarley is an Associate in Underberg & Kessler LLP’s Litigation Practice Group. She focuses her practice in the areas of civil and commercial litigation, defending institutional and small businesses. Katherine can be reached at kmccarley@underbergkessler.com
Reprinted with permission from The Daily Record and available as a PDF file here.