Discovery in the Age of Digital Information

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 District court looks to streamline electronic discovery process

By Steve Thorpe
Legal News

We live in a digital world. Communications usually take place via email, text message or digital document. It’s now possible for an attorney or judge to go through an entire workday without reading a piece of paper. 

In addition, the devices we surround ourselves with are now always quietly watching and gathering data. Our smartphones, tablets and even our cars are recording our movements and behavior.

Information is the fuel for the legal engine, and the methods of gathering that information are changing quickly.

“The undeniable trend is for information of all forms to be stored in an electronic format and that trend has no end in sight,” said Michael Hluchaniuk, magistrate judge for the Eastern District of Michigan. 

Hluchaniuk and U.S. District Court Judge Robert Cleland were part of a recent effort to streamline electronic discovery efforts in the district by creating a “Model Order Relating to the Discovery of Electronically Stored Information,” commonly called ESI. The project also created a checklist for attorneys and judges to use in organizing the process. 

Daniel Quick, Practice Department Manager at Dickinson Wright and co-chair of the Federal Bar Association’s Litigation Technology Committee, was also involved in the creation of the order. Quick is on the FBA’s executive board.

A complication of electronic discovery is that it’s not only about the information sought, but it’s about the technology involved. And it means that the often complex language of the law can end up mixed with the equally complex language of technology.

“Whenever the phrase ‘source code’ arises, there’s trouble on the horizon,” said Cleland with a chuckle.

Electronic information can also be accompanied by metadata not found in paper documents. That can play a role in its use as evidence. A simple example would be the date and time a document was created. That could be important in a criminal or copyright case. 

The courts have already struggled with the ESI issue and have already moved to improve methodology and process. For example, electronic discovery was the subject of amendments to the Federal Rules of Civil Procedure (FRCP), effective Dec. 1, 2006, and as amended on Dec. 1, 2010.

In the Eastern District, the bench took an active role in the effort.

“The judges were directly involved in the crafting of the protocol,” said Quick. “At some point during its drafting, a committee of practitioners was assembled for feedback and I served on the committee.” 

The model order contains principles that address issues including cooperation, proportionality, a duty to meet and confer, preservation, identifying electronically stored information (ESI), format of production, among others. The checklist suggests potential topics to be discussed as the parties confer.

It also places specific limitations on electronic discovery obligations. Some categories of ESI are exempted from discovery, including “random access memory (RAM) or other ephemeral data,” “on-line access data such as temporary Internet files, history, cache, cookies, etc.” and “data in metadata fields that are frequently updated automatically, such as last-opened dates.” 

In the Principles section of the order, it states: “Understanding of the feasibility, reasonableness, costs, and benefits of various aspects of electronic discovery will inevitably evolve as judges, attorneys, and parties to litigation gain more experience with ESI and as technology advances.”

The authors of the document realized that, when it comes to technology, they were trying to hit a moving target,

“The speed with which technology is changing was clearly recognized by everyone involved,” said Hluchaniuk. “For example, the model order, which has been rolled out and adopted by the court, is intended to be, at least for the first year, a kind of experimental process with input being sought from the practitioners as to how it’s working.”

Hluchaniuk hopes that feedback will become an important part of the process.

“We even talked about the FBA establishing a place where lawyers could input comments, anonymously if they chose, about the practicality of the order and problems that they had in the course of using it,” he said. “There has to be a mechanism to receive input from the lawyers.”

“We need to be both sensible and sensitive to the suggestions that are going to emerge from this,” Cleland said. “I expect that we’re going to hear from some practicing counsel that the model order itself is unduly burdensome. We should be alert to the reasons for those kinds of suggestions.”

Quick stressed that the details would be evolving over time, but that it was important to get core principles established.

“There are specifics in the order that may need to change over time as the technology changes,” he said. “But the main point is the paradigm of early and ongoing communication and the proportionality concept.”

One of the other issues that frequently arises is that the specialized knowledge needed to decide how difficult it will be to retrieve data isn’t always present in the courtroom or at the conferences.

“One of the significant features of this is that it requires the designation of an ‘ESI Liaison,’ says Hluchaniuk. “The lawyer has to come to court early on and either familiarize themselves with the (digital) issues or have someone with them who can address the issues. I couldn’t tell you how many times I’ve had a hearing at which the burdens of producing stored information comes up, and the lawyer looks like a deer in the headlights. ‘I’ll have to check with my IT person,’ they’ll say. If that’s what it’s going to take, we want that IT person to be there in the courtroom.”

Once the bench has an accurate, quantitative estimate of what will be involved in retrieving the information, they can make an informed decision balancing the value and the burden.

“The real question is, under the circumstances of the case and the information being sought, is the effort unduly, unfairly, or  inappropriately burdensome? It may not be worth it in a particular case,” Cleland said.

That burden isn’t only effort, it’s money.

“For a long time, parties would make any request they wanted and the responding party was generally responsible for the cost of producing that,” Hluchaniuk says. “That has become very expensive and sometimes the cost outstrips the litigation, in the sense that if a corporation is called upon to spend $200,000 to produce data in a lawsuit for $50,000 … it becomes the ‘tail wagging the dog.’ “

The court may consider in future whether to adopt the materials “as a uniform practice for the Court.”