When eDiscovery Rears Its Head

  • Trial Tips from Nextpoint • 
Last week, we talked about the ways small firms can use the eDiscovery rules to their advantage. Today, we’re going to drill down into the way that works at the start of a matter. When a lawyer is given a lawsuit that might involve digi­tal evidence, the first thing to do is send a preservation letter to the opposing side specifying the data types, locations, individuals involved and nature of evidence likely to be requested. Lawyers can depose individuals and information technology staff to find out how documents are stored and moved within an organization and use that information in their discovery requests.

A Litigation Hold or Preservation Letter must identify key players likely to control information related to litigation, the types and amount of data they may have, and the locations of the data – whether information will be found in mobile devices, portable storage devices, computers, cloud storage, web email accounts, or other locations.
Zubulake v. UBS Warburg has long been the defining case law in this area, mandating a reasonable inquiry to identify likely custodians or sources of information. In practical terms, this means no fishing expeditions. Even when it’s obvious that digital evidence is going to be key to a case, lawyers cannot just request all of the available data without first making a reasonable attempt to narrow the search.

Also, be prepared to show your work. There are numerous cases in which the court orders information about what was done to preserve and collect information (including document retention policies, instructions to employees, legal hold notices, etc.). Litigant may be required to supply evidence as to “which files were searched, how the search was conducted, who was asked to search, what they were told, and the extent of any supervision.” See Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 477 (S.D.N.Y. 2010).
Requesting and producing parties are equally responsible to show they have made a reasonable effort to identify custodians. For responding parties, lawyers should make sure all litigation hold letters get forwarded to the client immediately. The lawyers then should also prepare and circulate a memo outlining the steps to take to preserve evidence. That means telling clients to halt normal business practices like rotating and deleting electronic data that could be relevant, and stopping routine tasks like disk defragmentation and other maintenance routines. Individuals should be advised in the strongest terms possible that deleting anything from their computers or devices could lead to jail time. Any form of data destruction is potentially spoliation.

Litigation Tip:

Law­yers must instruct their cli­ents and other attorneys not to review documents on their own or they could upset the chain of custody or destroy metadata evidence. Lawyers should also work with clients to find where privileged emails and documents are likely to be kept so that those can be segregated from other documents before the review process begins.