Electronic Evidence, eDiscovery Case Law and the Attorney’s Role – Part I

The purpose of discovery within litigation is to uncover and ascertain the facts of a matter in order to argue the law based on those facts, and ultimately resolve the dispute before the court. In today’s world, evidentiary facts are often in digital form. The Internet of Things[1] connects common objects in our homes, places of work, and all points in between to the internet as information gathering sources. (Home alarm systems are a great example, which can track who arrives and departs from home and when; assigning distinct codes to each member of a household and sending text messages when the alarm is armed or disarmed.) Further, when people are moving from one place to the next, a large majority carry computers (mobile devices) around with them. For example, our smart phones tell us (and anyone else with access to our device) the best route to take to work and track where we park our cars. We are constantly plugged in, and therefore constantly creating a record of everything we do in what becomes digital/electronic evidence that is relevant if and when litigation arises. For more examples of electronic evidence, consider black boxes in vehicles, sensors, security cameras, home appliances, social media, websites, mobile devices, text messages, voice mail messages, chat history, e-mail, electronic documents and spreadsheets, mobile apps and games, and more. Handling all of this electronic evidence within the context of litigation is called Electronic Discovery (“eDiscovery” or “E-Discovery”).

Among attorneys, there is a debate as to whether eDiscovery (i) should be considered its own practice area, (ii) is a skill all litigators should develop as a matter of course, or (iii) is better categorized as litigation support. In reality eDiscovery can fit into all of these categories, and also be so much more. A notable characteristic about the field of eDiscovery is the diversity of professionals that make up the field: forensic examiners, project managers, IT professionals, records management professionals, paralegals, attorneys, and sales people.

For the more technical professionals in the field, eDiscovery is about data management, litigation support, and handling actual evidence through collection, processing, analysis, production and presentation. For attorneys in litigation practice, eDiscovery encompasses the above (with the lawyer either possessing the technical competence to deal with eDiscovery, or associating with or retaining professionals who have said competence[2]), along with document review, and so much more, as eDiscovery presents legal issues that must be argued in court and ruled on by judges.

Typical legal issues presented by eDiscovery that must be handled by attorneys and therefore constitute the practice of law are:

• The Duty to Preserve,
• Legal holds,
• Spoliation of evidence,
• Forensic Collection,
• Self-Collection,
• Form of production,
• Proportionality,
• Inaccessibility,
• Sampling,
• Cooperation of Counsel,
• Cost-shifting,
• Cost-Recovery,
• Third Party Subpoenas,
• Records Custodian depositions,
• Accessing and authenticating social media evidence,
• Waiver of privilege and inadvertent production,
• Technology Assisted Review,
• Ethical obligations, and more.

These issues often lead to disputes between parties to litigation, require legal analysis, and thus make up the “practice of law” aspect of eDiscovery. Each of these categories presents issues that must be weighed and decided by courts, many of which overlap and interrelate. The case law presented by these topics in both Federal and Florida state court will be analyzed in the 10 remaining articles of this series, beginning with “The Duty to Preserve.”

Preservation is a topic that often leads to disputes because of the cost and data management issues that arise out of Big Data[3] and how it is dealt with in the normal course of business. The timing of preservation obligations and the “anticipation of litigation” standard in Federal Court can be subject to interpretation by parties who must deal with factors other than the dispute before the court in managing the impact of preserving data. Such factors include the cost of data storage, location of stored data, records management policies, and more.

Other legal issues arise if evidence is in fact spoliated, in which case the court often must determine and consider many factors such as whether a legal hold was in place, whether there was bad faith or negligence in the spoliation, whether the information may be obtained from another source, whether there was an adverse impact on the opposing party and what that impact was, and then decide whether and how to sanction the spoliating party accordingly. All of these issues have led to case law that will be further discussed in Part 2 of this series.

E-Discovery and the handling of electronic evidence, ESI, and all sorts of data present a large variety of legal issues and disputes that must be considered by attorneys as they handle litigation and represent their clients. This series is intended as a starting point for discussing these issues and presenting the case law that has arisen as these disputes have been presented to the courts. With the depth and variety of disputes that arise in the field of eDiscovery, and the rules and law that have been developed around them, it is not a stretch for one to conclude that eDiscovery is very much a legal practice area, and not simply a role for litigation support or technical professionals.

[1] See Morgan, Jacob, “A Simple Explanation Of ‘The Internet Of Things’” available at http://www.forbes.com/sites/jacobmorgan/2014/05/13/simple-explanation-internet-things-that-anyone-can-understand/#41c8d20c6828.

[2] On September 29, 2016, the Florida Supreme Court authorized amendments to The Rules Regulating The Florida Bar including adding language in the Comment to Rule 4-1.1 stating “[c]ompetent representation may also involve the association or retention of a non-lawyer advisor of established technological competence in the field in question.”

[3] “Big data is a collection of data from traditional and digital sources inside and outside your company that represents a source for ongoing discovery and analysis.” See Arthur, Lisa, “What is Big Data?” Available at http://www.forbes.com/sites/lisaarthur/2013/08/15/what-is-big-data/#18e03e613487.