What? Me Worry About E-Discovery?
Tuesday, July 5, 2016
Posted by: Mary Mack
With data protection, surveillance and cross-border transfers occupying the news, it might seem that eDiscovery is addressed by support personnel.
What could possibly go wrong with electronic data that would justify the time and expense it takes for an attorney to learn about it?
Starting at the level of the individual attorney-client communication, a confidential communication could fall into a big bucket of data and be produced to the government, or a bitter adversary. This is called “inadvertent production” in eDiscovery, and prepared practitioners have claw-backs and judicial orders to protect against mistakes with privileged material.
Ensuring the ability to segregate privileged and confidential material from other materials is one of the most important reason attorneys feel that electronic documents need to be reviewed before production. Those trained in the discipline of electronic discovery know that an amendment to the U.S. Federal Rules of Evidence (FRE 502) grants almost blanket protection against inadvertent production in a particular matter—and for other matters, including state matters.
FRE 502, sometimes called a “Get Out of Jail Free” card after the Monopoly square, is a “no brainer” for the eDiscovery savvy. Yet, it is still necessary to address personal information, protected data, personally identifiable data, and health information. Government agencies are just becoming adept at redacting personal information before releasing transparency reports. EDdiscovery software can do the heavy lifting on this, with patterns like phone numbers, credit cards, social identifiers, bank accounts and others being automatically blacked out and logged. Attorneys are then able to sample a smaller subset to make sure the patterns were addressed adequately, thus protecting themselves and their clients.
Comingle the confidential, privileged material with personal email, and it is possible that embarrassing or hurtful emails could surface without a review. These emails will multiply and pile up without an intervention. The term “information governance” is used to describe the first step in electronic discovery. eDiscovery practitioners keep on top of the data their clients need to keep due to regulatory, litigation or business value, and provide a methodology to delete data that is no longer needed. Defensible deletion, as it is sometimes called, is much less risky under the 2015 rule changes to the Federal Rules of Civil Procedure. Each document that is defensibly deleted is a document that does not need to be addressed by automated review or attorney eyes on. These documents can add up into thousands and millions, avoiding millions in unnecessary cost.
Attorneys who receive print-outs or electronic data are correct in feeling like the documents would be easy to alter. Just type a “not” into a key phrase or change the date on a document and the impact of the document in your case is dramatically changed. Understanding how to question your adversary, or how to generate your own data in a way that is verifiable is an area of eDiscovery called authenticity and chain of custody. While most data that is produced will not make it into evidence, one does not know what document will be important and what is duplicative or not responsive. Treating all documents as potential evidence allows attorneys to assemble a case without having to backtrack and recollect documents so an adversary would not have an easy way to discredit them.
One of the main reasons persons who are not enamored of computers learn about, and get better and better at electronic discovery is that the more well-prepared person in this domain has an enormous advantage over the unprepared. From negotiating what is in scope and out of scope, to setting down the framework for preservation, to offering up tested boilerplate for the FRE protective order and clawbacks, requests for admission, a favorable production format and a cost effective, and efficient data reduction protocol, the prepared attorney saves his or her organization time and money. The risk reduction dividend is obvious -- the attorney will be demonstrating technical competence by addressing electronic discovery, allowing the case to be settled or litigated on the merits rather than on how evidence is mishandled.
For the international practitioner, understanding the U.S. eDiscovery rules and workflows allows for negotiation and appeal to the judge to sequence discovery. It is advantageous to make international data the last tranche to allow for Data Protection processes. Without this understanding, the international practitioner will be perceived as withholding evidence, or running into deadlines in a way that can impact the budget, the trust of the judge and opponent and even the core of the case.
As the world’s borders become overrun by data flows, it is the attorney educated in electronic discovery that can participate and contribute to the discussion about metadata, privacy, transparency and accountability.
It is a rare case or political question that does not have, at its heart, documents that originated in electronic form