By John Baker
Attorneys involved in litigation came to understand some time ago that the courts will treat client information stored electronically essentially as though the information is a document. If information stored electronically is discoverable (a test, as we all know, that is far broader than whether the information is admissible — (see ORCP 36 B(1) and FRCP 26(b)(1)), the information must be identified, located, generated in a way that makes it intelligible to the party requesting it (see the references to "reasonably useable form" in both ORCP 43A and FRCP 34(a)), and produced. The information, as produced, may take a number of different forms. For example, the information could take the form of a hard copy of an e-mail that theretofore never existed as a hard-copy document, or it could be contained on a disc as graphics or spreadsheets that were previously stored on someone's hard drive in electronic form only.
But the "simple" part of electronic discovery largely ends here, because while it isconceptually easy to think of electronic information as a "document" for discovery purposes, there are practical differences between electronic and hard-copy information that generate difficulties and discovery battles unique to electronic information. For example, an e-mail originally sent and received only in electronic form will not reveal itself through the time-honored method of assembling all the "files" pertinent to a case. The e-mail is not in any file, as files are traditionally thought of. It will have to be found by way of an electronic search, or by way of a review of e-mail messages reduced to hard copies. But imagine that you are an attorney reviewing your client's e-mail messages (whether on screen or on paper) to respond to a production request from an adverse party, and imagine that you come upon an e-mail from Bill to Mary at your client's company that was generated a year ago with a subject line that says "contract issue" and a text that reads: "You're right. It's a problem. Let's meet ASAP." It may be that even Bill and Mary will be unable to remember, a year later, to what "contract" the e-mail referred, what Mary was "right" about, what the resulting "problem" was, or whether anything was done about it. A paper version of the same communication would probably have ended up in a file related to the subject. A year after the fact, the subject matter of a randomly-stored e-mail may be exceedingly elusive. Thus, even the threshold issue of whether an e-mail is discoverable in certain litigation is made difficult by the informality and sparseness of e-mails.
Moreover, electronic information often does not go away even though its originator "got rid" of it. A pertinent but deleted e-mail may or may not be recoverable a day later or a year later, depending on an assortment of technological variables. If it can be recovered, it is almost certainly discoverable even though it was "deleted," and the deleting entity may have to recover and produce it. The range of electronic information that may have to be identified and recovered, even though "deleted," can take on nightmarish proportions. InKleiner v. Burns, 48 Fed. R. Serv. 3d 644 (D. Kan. 2000), the court defined discoverable electronic evidence to include:
...voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mail, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphic or audio format, web site log files, cache files, cookies, ...other electronically-recorded information... [and] any back-up copies of files or archival tapes that will provide information about any 'deleted' electronic data.One troubling aspect of the existence of huge universes of electronic information is the financial burden and business disruption involved in locating and producing that information. For example, just tracking down whether the "Bill to Mary" e-mail discussed above is discoverable1 may take a significant amount of time, even without considering the time and effort by clients in locating the e-mail in the first place and recovering it if it had been deleted.
Where should the burden for such expenses fall as between the seeker and the holder of the information? There is as of yet no definitive answer, but courts across the country are slowly working their way toward consensus. In the leading federal decision of Rowe Entertainment, Inc. v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002), the court articulated an 8-point test for evaluating whether costs should shift between the requestor and producer of electronic information. The factors are in part practical (e.g., whether the information requested is available elsewhere) and in part equitable (e.g., the relative resources of the parties). One court has recently tinkered with the Rowe test (refining and weighting its factors) while suggesting that cost shifting should be considered in electronic discovery only when the information is unusually difficult to access. Zubulake v. UBS Warburg, 2003 Westlaw 21087884 (S.D.N.Y. May 13, 2003).
"Punishments" for failure to play by the rules of electronic discovery have been numerous and severe across the country, ranging from huge monetary sanctions to default judgments. It is becoming ever clearer that no matter how difficult and complicated the task, handling electronic discovery correctly will simply be a firm expectation of the courts. Doing it right, therefore, becomes a core requirement for litigation lawyers.
1Courts can and do order parties to disclose not only electronic records, but also the manner in which they went about locating such records, because the locating process, without monitoring, is subject to manipulation or simple shoddiness. See, e.g., In Re Livent, Inc., Noteholders Sec. Litigation, 2003 Westlaw 23254 (S.D.N.Y. Jan. 2, 2003).