Frequently Asked Questions
What is electronic discovery?
- Electronic discovery refers to discovery – often in civil litigation, but also in connection with regulatory proceedings, subpoenas, or criminal proceedings – of electronically stored information. Common forms of electronically stored information include e-mails, databases, and computer files such as word processing documents.
How can things go wrong in electronic data discovery (EDD)? What obstacles can I avoid?
- Too often, electronic productions are over-inclusive, creating substantial undue cost and review time. This is caused by improper use of filtering tools, as well as a vendor’s fundamental lack of understanding and care for the client’s case. A crucial component of good EDD is properly filtering, culling-down, deduping, and deNISTing data BEFORE production, which dramatically lessens the scope and cost of review.
- Every case is unique, and our experts understand proper application of each powerful tool at their disposal. For this reason, including EDD vendors in your 26(f) Meet and Confer can really make a huge difference in the way they are able to leverage the full range of data available. Global’s EDD project managers are always available to provide this extra knowledge resource in person for your case related meetings.
What is the relevance of metadata?
- Metadata refers to information stored by computer systems about electronic data. Examples include data about when a particular electronic document was created, data about which user last accessed an electronic document, or data about which e-mail addresses were copied on a particular e-mail. The relevance of metadata in a particular action varies depending upon the nature of the action and the type of metadata at issue. For example, metadata concerning who most recently revised a particular electronic document may not be relevant in some cases, but could be relevant if, for example, the authenticity of the document is in dispute.
How does electronic differ from paper?
- Electronic data differs from paper documents in a number of important ways. Most obviously, electronic data is not accessible without the use of intervening technology – usually, a computer. Electronic data also tends to proliferate in significantly greater volumes, due to the ease with which it is created. Electronic data is persistent – that is, electronic data is difficult to delete. Electronic data also contains dynamic or changeable content. Each of these differences has implications for the manner in which electronic data is treated in discovery.
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What is a company’s duty to preserve electronic data?
- The law provides that an organization has a duty to preserve data that may be relevant to litigation once that organization can reasonably anticipate the litigation. This duty is no different with regard to electronic data as it is with regard to paper documents. However, the scope of the duty to preserve is not always clear, and the unique nature of electronic data adds further complication. The question of which data must be preserved is a difficult one.
- An organization need not preserve every scrap of data that is potentially relevant. See, e.g. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D. N.Y. 2003) (holding that an organization is not obligated to “preserve every shred of paper, every e-mail or electronic document, and every backup tape?”). Accordingly, when an organization reasonably anticipates litigation, it must make a careful determination as to which electronic data sources are properly within the scope of the preservation duty. Failure to properly preserve documents may lead to sanctions, including monetary penalties, adverse inference jury instructions, or default judgments.
How are privilege and privacy protected in discovery?
- Generally, privilege is waived if a document or data is given to someone outside the privilege. There is no “litigation exception” to this rule, and consequently, if a privileged document is produced in litigation, the privilege is usually deemed waived. A variety of courts have examined this doctrine and set forth different tests for what constitutes a waiver of privilege. In some jurisdictions, only a knowing and voluntary abandonment of the privilege serves as a waiver, while in others, even an inadvertent disclosure of a privileged document constitutes a privilege waiver.
- The proposed amendments to the Federal Rules of Civil procedure will make explicit a practice that has long been informally used by parties to complex litigation by allowing a party who inadvertently produces privileged materials to request their return. Under Rule 26(b)(5)(B), a party is required to return, sequester, or destroy privileged material once the party is notified that it was inadvertently produced. The producing party however, must demonstrate that due care and action was used to prevent such inadvertent disclosure, otherwise privilege may be waived.
How can electronic discovery costs be shared between relevant parties (cost shifting)? How costs be reduced?
- Identify, preserving, collecting, reviewing, and producing electronic data can be extraordinarily expensive, particularly if the needs of the matter require discovery of relatively inaccessible data, such as data stored on backup tapes. Ordinarily, each party bears its own discovery costs; however, some courts have ordered discovery costs shifted in whole or in part where the requesting party seeks particularly burdensome discovery. See, e.g. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317-324 (S.D. N.Y. 2003) (setting forth methodology for determining whether cost-shifting is appropriate).
- In terms of cost reduction, organizations can employ a variety of techniques before and during litigation in order to reduce the costs of complying with discovery. Prior to the beginning of litigation, an effective and reasonably document management program can help ensure that the organization does not accumulate data it does not need. If data not otherwise subject to preservation obligations is discarded or deleted once it is no longer needed for business purposes, the organization can reduce the costs associated with data review during litigation. Once the organization actually begins reviewing data, it should consider employing search criteria to make initial determinations of the relevancy of data; the use of such search criteria can significantly reduce the costs of data review.