Avoiding Electronic Discovery Pitfalls
by Tania Mabrey
Electronic discovery raises a host of ethical, legal and cost-benefit questions that can overwhelm even the most experienced litigator. Recent case law is filled with examples of pitfalls that attorneys can avoid with careful planning before the onset of discovery. We provide a snapshot of six of these electronic discovery pitfalls that litigators should be eager to avoid.
1. Image isn’t everything.
In United States v. Briggs, a federal magistrate judge in New York recently ordered the Justice Department to reproduce discovery documents in PDF or another format that was "suitable for searching." The government previously produced voluntary discovery using graphic images (TIFF files) that could not be sorted or searched. The magistrate noted that while there were no express rules governing electronic data in criminal cases — unlike civil cases — the court possessed the "inherent authority" to order the government to reproduce the requested documents in a searchable format.
The government learned a lesson here that applies to private counsel as well. To the extent practicable, electronic data should be produced in a format the recipient can readily search or in a format that reflects how the data is kept in the normal course of business.
In Brandofino Communications, Inc. v. Augme Tech, Inc. a judge in New York ordered that defendants in a case must produce all documents in text-searchable format and specifically that the documents be suitable for searching in Concordance.
2. Keywords are key.
Having searchable documents means little if you don't know what you're searching for. It's essential in electronic discovery to cooperate with opposing counsel in determining what keywords are necessary to satisfy search and review requirements. Failure to do so can be costly. In a British case, Digicel (St. Lucia) Ltd. v. Cable & Wireless PLC, a judge ordered the defendants to re-search over one million documents (at the defense's expense) after not securing a prior agreement with plaintiff's counsel over what keywords to use.
3. The price may not be right.
To avoid the extensive costs of reviewing every single document subject to discovery for privileged information, courts have the authority, under Federal Civil Rule 26(c), to issue blanket protective orders upon a party's request to prevent "undue burden or expense." In administrative litigation, such as Federal Trade Commission cases, such protective orders are issued as a matter of routine. But in routine civil litigation, the attorney must convince the court that "good cause" exists to issue such an order. Attorneys should prepare, to the extent possible, detailed projections of the prospective costs and benefits of e-discovery so that the court may readily see how a protective order benefits all parties.
4. Privilege should not be assumed.
The American Bar Association's Ethics Committee recently advised attorneys that they "must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or email account, where there is a significant risk that a third party may gain access." This is particularly important if your client is an employee who uses his or her work computer or email account to correspond with you. In such cases, the ABA says the attorney has a duty, at a minimum, to advise the client that their correspondence may be monitored by the employer — and that it may not be protected from discovery in future litigation. Ideally, the employee should refrain from using work computers or accounts to communicate with his attorney on confidential matters.
5. How attached are email attachments?
A key, but sometimes overlooked, electronic discovery issue is whether to treat emails and their attachments as singular or separate items. In Abu Dhabi Commercial Bank v. Morgan Stanley & Co., a federal court in Manhattan had to rule on a dispute involving this question, and the Special Master in the case noted, "the best practice is for parties to discuss [the matter]and to reach agreement as to the treatment of emails and attachments for responsiveness and for privilege purposes."
In In re Fresh & Process Potatoes Antitrust Litigation, a court in Idaho had to rule on several ESI issues including the handling of email and email attachments. The judge ordered that, "Queries of email will be run against email and attachments. If either an e-mail or any of its attachment is responsive and non-privileged, both the email and all of its attachment will be produced, subject to any agreements reached in the parties' meet-and-confer process regarding the parties' objections to discovery requests."
Absent such agreement between the parties, it cannot be assumed that a court will automatically exempt attachments from discovery just because the parent email has been deemed privileged or non-responsive.
6. Do your homework when it comes to social media.
It goes without saying that an attorney must never tamper with evidence. But with the ubiquity of social media, a treasure trove of electronically stored information(ESI), unscrupulous opposing counsel may attempt to alter or remove information as an end run around discovery. In the case of Lester v. Allied Concrete Company, a Charlottesville attorney is currently facing $900,000 in sanctions after instructing a client to delete photographs from — and later deactivate entirely — his Facebook account to avoid discovery. In Painter v. Atwood, a plaintiff who brought suit against her former employer for climbing on top of her with his pants undone, was sanctioned for deleting text messages and social media posts.
This type of incident demonstrates the importance of taking inventory of publicly available ESI before discovery begins. If you anticipate requesting information from a Facebook, Twitter or other social media as part of discovery, do your own preliminary research and make copies of the pages in question so your opponents cannot later try to deny the existence of the accounts or pass off intentional alterations as accidental.
There are many other pitfalls that can be encountered when handling ESI in a litigation or in response to a government subpoena. It is important that litigators keep pace with new discovery rules regarding electronic data and engage the help of an experienced electronic discovery consultant to aptly navigate the associated technical complexities. With increased awareness and the right team in place – these and other potential electronic discovery pitfalls can be adeptly avoided.