The proliferation of electronic data has dramatically changed the landscape of civil litigation. According to a University of California study, “93% of all information generated from 1999 was generated in digital form, on computers. Only 7% of information originated in other media, such as paper.”[i] As a result of these developments, almost all documentary evidence that is relevant to the outcome of a lawsuit is generated by computer technology. emedia, cloud storage and other internet technology which places some information in plain view for the world to see. The law continues to adjust to these technologies, changing the way lawyers approach issues surrounding the preservation, production and admissibility of electronically stored information.
The explosion in computer generated information directly impacts discovery practice, trial strategy and our assumptions about litigation. This is because computer generated data has many unique characteristics that are not always taken into consideration in traditional approaches to discovery and trial practice. Unlike a banker’s box full of documents that are static, readily identifiable and usually kept in one location, electronically stored information can be voluminous, dispersed within many specific locations and, in most cases, accessible and open to human intervention. This central feature of electronically stored data- “untestability”- requires special emphasis from the preservation stage through the production stage, raising direct questions regarding authenticity and admissibility from very early in the lawsuit.
The first step in developing an ESI-based a discovery strategy requires a full appreciation of how electronic data is much different than its copy, paper counterpart. As a starting point, electronically stored documents often reside in computer systems that are not secured or protected. Unlike a paper document, which is usually easily identified by reference to a signature or other unique characteristic, it can be very difficult to show that electronically stored information is truly authentic. This is because multiple users often have access to the document over a span of time, making it very difficult to determine whether the information within the document is being produced in its “original” state. Consequently, ESI is often difficult to authenticate without an unbroken chain of preservation or sufficient proof of “system integrity” that supports the proponent’s representation of authenticity. This places a significant burden on the proponent of the admissibility of electronic data- one that can be difficult to sustain.
The shift to electronic data has critical implications for the litigator, his strategy and the costs incurred in prosecuting or defending a lawsuit. Today, people do not create documents when they use a computer. The “documents” are created by a computer that stores and processes information that is transferred into a usable medium, such as a writing. The focus for the lawyer is not the document but rather, the information itself as it existed in its natural or original state and, then, at a specific point in time. This can change behind the scenes, sometimes automatically, even without a writing.
There are other features of ESI that must be taken into account when preparing an ESI discovery plan. For example, electronic data is often stored in different formats in different media by different authors and contribution. Given the volume of data that is often involved, cooperation is essential to manage these distinctions in a meaningful way. When litigation is foreseeable, counsel and her client must take specific, concrete steps to preserve electronic data and maintain its integrity until the matter is concluded. Following that, counsel must navigate the meet and confer process with opposing counsel to secure agreements regarding the form of production and the preservation of privileged or confidential information. Protocols should be established to ensure that information is reviewed and processed in a reliable, defensible fashion.
Not surprisingly, the questions of cost and efficiency surfaced immediately as a central issue in many cases involving complex or voluminous electronic data. In many cases, costs associated primarily with the review process soared well beyond the value and significance of the litigation that prompted it. Litigants and courts naturally wrestled with a difficult cost/benefit calculus, forcing renewed emphasis on the burdens associated with discovery that is not narrowly focused or targeted on the discovery of necessary, admissible evidence.
This debate continues. Today, counsel must be particularly sensitive to questions concerning proportionality, a critical precept of discovery law that ultimately determines who must pay for the review and production of data through a “cost-shifting” analysis. Finally, counsel must consider questions regarding the admissibility of electronic data from the earliest stages of the lawsuit, both defensively and proactively, with an eye towards authentication and other traditional safeguards of evidence law, including privilege. Cooperation between the parties and active judicial involvement is necessary for this process to unfold in a meaningful way.
They e-discovery process can be broken down into interlocking pieces that are is designed to insure the integrity of documents that are admitted at trial in an efficient, proportional fashion. To accomplish this task, it is first necessary to define ESI and to outline the key differences between electronic data and paper documents, which often define the process in critical ways. This topic is next..
[i] In re Bristol-Myers SQUIBBS Securities Litigation, 205 F.R.D. 437, 440 n.2 (D.N.J. 2002).