Those stuck inside this claustrophobic echo chamber of e-discovery "thought leadership" -- and I use this term indiscriminately -- forget that not everyone is a sixth dan black belt in ESI karate.
Actually, the vast majority of practitioners (i.e. The other 85%, as the widely neglected audience has been tagged) know little to nothing about this dark art because it's either not something they have to deal with on the reg, they avoid it like the plague, or the abundant education opportunities aren't evident. We know this because we've spent several days last week with a group of 300 solo and small firm attorneys in a Newport Beach hotel for the California Bar Solo and Small Firm Summit -- where, through the fault of nobody (except law school deans and the American education system), the bar for handling electronic data is very low.
Case in point: the session, "The Paperless Office - Using Technology to Maximize Efficiency and Profit," which professes to "offer a practical, step-by-step guide on how to convert your office to a digital environment." During the Q&A, when the presenter was prompted to explain how he safely retains client files, this dispiriting exchange occurred:
Q: How do u protect sensitive client files? A: Lock them in a fireproof safe ~ From tech session @ CA Bar Solo & Small Con #LongWay2Go
— Logikcull (@logikcull) June 18, 2015
Dear god. Locking hard drives in a safe qualifies as a best practice for people not reading Ralph Losey!
But here's the thing. Most practices can't avoid e-discovery completely, even if it disguises itself as boxes of paper -- especially if it disguises itself as boxes of paper.
To most people we talked to last week, "e-discovery" means getting dump trucked with banker boxes. This is particularly true of lawyers on the plaintiff's side who are often going toe-to-toe with much bigger, well-funded adversaries -- but it is by no means isolated to this group. Document dumps are a symptom of 1) an antiquated discovery process, where electronically stored information is converted to paper out of routine or otherwise stripped of data innate to it 2) naiveté about what rules allow and demand 3) lack of control over data and 4) tooth-and-nail obstructionism. (We'll address point 2 momentarily...)
When a document dump occurs, usually both parties are to blame -- the receiving party for not specifying what it wants, and the producing party for either intentionally turning over an information hodgepodge to stifle its adversary or unwittingly turning over an information hodgepodge because it doesn't have the resources, knowledge or organizational wherewithal to produce in a cogent fashion.
Several attendees described the pain of fielding a discovery production of print outs, feeding each piece-by-piece into a scanner, OCRing them, applying rudimentary search filters using an off-the-shelf software, and so forth.
Here's the good news:
You, too, can specify a form of production.
That's right. You don't have to take it on the chin every time. Federal rules and many state rules -- along with a huge body of case law -- explicitly allow requesting parties to specify the form of production they wish to receive information. It's a best practice. In general, rules require parties to produce documents in a way in which they are "ordinarily maintained" or in a "reasonably usable" form -- meaning, searchable and including metadata. Boxes of paper usually check neither box.
The producing party can always object to the request, but it must have a good reason -- and if it doesn't, the court will generally intervene. As always, it is best for the parties to "meet-and-confer" prior to the exchange of information to decide on a production format.
If you regularly find yourself on the wrong end of a document dump, or are skeptical of taking advice from faceless authorities on the interwebs, consider this sampling of federal and state authorities:
Federal Rules of Civil Procedure
Rule 34(b)(1)(C), Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes:
Contents of the Request. The request: may specify the form or forms in which electronically stored information is to be produced.
(Committee Note to the 2006 amendments: “If a request does not specify a form, … the responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.”)
California Code of Civil Procedure, Rule 2031.030(a)(2):
A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced.
Rule 1.350(b), Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes:
A request for electronically stored information may specify the form or forms in which electronically stored information is to be produced. If the responding party objects to a requested form, or if no form is specified in the request, the responding party must state the form or forms it intends to use. If a request for electronically stored information does not specify the form of production, the producing party must produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
New York State Bar Association Best Practices In E-Discovery In New York State and Federal Courts, Guideline No. 7:
In requests for production of documents or subpoenas and objections to requests to produce or subpoenas, the form of production of responsive ESI should be clearly stated.
Rules of Civil Procedure 196.4:
To obtain discovery of data or information that exists in electronic..., the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business.
The resemblance, as they say, is uncanny.
Asking for native files, if you have the tools to receive them -- which you should, because they are readily available and affordable -- is usually a no brainer (an exception here would be if the data at issue resides on a proprietary or legacy system that is difficult to process). Exchanging native files allows evidence to be produced fully intact and without degradation.
It's also more affordable and inefficient -- and that's the name of the game.
Robert Hilson is a director at Logikcull. He can be reached at firstname.lastname@example.org.