E-Discovering Electronically Stored Information
As we have previously discussed, the Federal Rules of Civil Procedure provide specific rules for the handling and discovery of electronically stored information (ESI). In Florida, the Rules of Civil Procedure were recently amended to include at least some guidance relating to ESI and e-discovery. Those amendments impacted different rules: Rule 1.200 (Pretrial Procedure), Rule 1.201 (Complex Litigation), Rule 1.280 (Specifically allows ESI), Rule 1.340 (Interrogatories), 1.50 (Production of Documents and Things), Rule 1.380 (Spoliation Safe Harbor as a Result of Business Practice), and Rule 1.410 (Subpoena of ESI).
The new Florida rules attempt to bring court rules up to date by adding rules intended to control the discovery of electronically stored information (ESI). These new provisions provide far fewer tools for judges and parties than are included in the federal rules. The Florida Rules are more of an “opt in” event than the Federal Rules. For example, the Florida rules provide no procedure requiring a “meet & greet” conference as set forth in Federal Rule 26(f). In fact, the Florida rules from a practical perspective do not require the parties to discuss any ESI or e-discovery pretrial practice unless one of the parties moves to declare the case “complex” as defined under Florida Rule 1.201. Rule 1.200, Pretrial Practice, in the committee notes it is set forth as:
“The parties should consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and the production of electronically stored information.”
If a party moves to declare the case as “complex litigation”, under Rule 1.201, the court is not compelled to hold a case management conference for 60 days and the parties are instructed to confer 20 days before the case management conference regarding issues, including:
“Rule 1.201(b)(1)(J): the possibility of obtaining agreements among the parties regarding the extent to which electronically stored information should be preserved, the form in which such information should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources.”
The danger is an inference in the rule that the extent of preservation of ESI is not necessary to consider until the pretrial or case management conference. In fact, Rule 1.200 further reinforces this by setting forth that one of the things the court may want to discuss with the parties is “the possibility of agreements from parties regarding the extent to which such evidence (ESI) should be preserved…”
If you believe that electronically stored information will be in the possession of a defendant and that e-discovery will be required in a case, you should place the defendant on notice of your claims at the earliest possible time. Advise the defendant in writing that preservation of all ESI is essential and that a failure to preserve relevant data will result in seeking sanctions from the court. You should also invite the defendant to have their attorney contact you with any particular problems encountered or anticipated with compliance of preservation demands.
If you are in state court, serve a motion to declare the matter to be “complex litigation” as soon as the defendant files an answer to the complaint and request the court allow the earliest possible pretrial discovery conference. Contact opposing counsel in the meantime and determine if any of the discovery issues can be worked out without the need for a discovery conference with the court (you can always cancel it).
What issues do you need to work out with opposing counsel? Although not an all-inclusive list and driven by the sp0ecifics of the case, consideration to the following topics should be given:
- Date ranges of creation and receipt dates for any ESI.
- A description of data that is considered to be not reasonably accessible and the basis for that claim; while gaining assurance that it will be preserved anyway.
- Detailed description of any normally followed document destruction programs/procedures followed by the defendant and assurances that they will be suspended in order to prevent destruction.
- The names, job titles and general job descriptions for all custodians for whom ESI will be preserved and the same information for custodians in the same departments for whom ESI will not be preserved. Include the basis for not preserving those custodians ESI.
- A list of the systems containing ESI, which will be preserved.
- Agree on any disputes between the parties concerning preservation and destruction of ESI.
- Agree on a single individual for each party who will be the “go to” person for any issues relating to ESI and e-discovery matters. This person should be technologically savvy and be basically familiar with legal practices.
Informal Disclosures Regarding Systems
- What systems that contain ESI will be a first priority and which will be examined in subsequent productions.
- A description of all the systems where potentially discoverable ESI is located.
- A description of how potentially discoverable ESI is stored.
- A discussion of the most efficient methods for collecting potentially discoverable ESI and who will accomplish that collection.
- What are the projected costs of the collection and production?
- Can the parties agree on the method of collection and what costs each party should bear?
- Can the parties agree on the use of a third party vendor and a sharing of the costs?
- What limits on the collection of ESI can be mutually agreed?
- What search methods will be used to locate and cull through potentially discoverable ESI?
- What quality control and sampling methods can the parties agree on in order to locate potentially relevant ESI?
- Should discoverable ESI be produced in phases? If so, what type of phasing makes the most sense?
- What formats will the various productions of unstructured (email, presentations, word processing) ESI be made?
- What formats will the various productions of structured (databases, collaboration sites) ESI be made?
- What formats best preserve the ultimate search-ability and management of produced ESI?
- What metadata can be produced and what metadata are the parties willing to produce?
- Will the parties agree to a non-waiver (claw back) agreement for inadvertent disclosures?
- Can the parties agree on methods of identifying privilege and setting forth privilege logs that relieves some of the burden?
- Can the parties agree on categories of documents and claims of privilege?
- Is any potentially relevant ESI that may be produced subject to trademark or trade secret protection? Can the parties agree on entering into a confidentiality agreement?
All that answers to these questions and issues will get you is a starting off point for proceeding with formulating a plan for discovery. It is however, a very good start.