E-Discovery: What Technology Professionals Must Know

Growth of electronically stored information gives IT a critical role in litigation

by / August 24, 2009 0

In 2006, the Federal Rules of Civil Procedure - the court process for civil lawsuits - were changed because more than 95 percent of all information is now electronic. Many other states have followed suit, and litigation in the U.S. is now dominated by electronically stored information (ESI). ESI has spawned a new consulting marketplace of consultants, IT professionals and expert witnesses who specialize in the identification and control of ESI. As a result, IT professionals need to understand the Law of Evidence and Rules of Civil Procedure as much as they do the server technology and storage area networks.

Lawyers, on the other hand, have yet to master IT, not just IT lingo, but how IT professionals manage their business. So there is confluence of IT and law that has subsumed litigation in the U.S. Outside the U.S. courts and arbitration systems, we do not subscribe to the open-end litigation which happens in the United States.

In the U.S., litigation is ruled by state or federal courts systems, or by private arbitrations governed by the rules of the American Arbitration Association, or some other organization like Judicial Arbitration and Mediation Services (JAMS), a private alternative dispute resolution (ADR) provider.

This article gives some basic information about e-discovery to help IT professionals understand the law in a straight-forward manner.

What Is Discovery?

Generally after a lawsuit (or arbitration) is filed until just before the trial (or hearing, in an arbitration) is a period of time referred to as discovery. Simply put, this is a time when each party of the suit has a chance to ask questions of the other parties. Each side in a suit is entitled to inquire about the claims and defenses so that when the trial occurs, there are no surprises. In fact, if a party withholds information, it may be penalized by losing the trial or a mistrial may be called by the judge or arbitration panel. The evidence collected in discovery is used at the trial or arbitration hearing to prove or disprove specific claims.

There are four primary categories of discovery:
1. written questions referred to as interrogatories;
2. requests for the production of documents and things;
3. requests for admissions; and
4. oral testimony called depositions.

For the most part, there are limits on each category, but since ESI is fundamental to every lawsuit today, it is best to have a basic understanding of each type. Interrogatories, document requests, and requests for admissions usually include definitions, and in today's world, mostly detail IT and/or Internet issues related to the dispute.

The types of discovery requests included in interrogatories regarding ESI can include questions such as: "Describe the procedures for daily backup of the e-mail system;" "When did you start using Google Analytics to measure traffic on your Web site;" or "List all employees who had passwords to the Oracle Financial database between Jan. 20, 2003 and May 9, 2005." Under most procedures the responding party has 30 days to send its answers and objections to the questions posed, all of which can be challenged for completeness or accuracy.

Document requests may include a request for all e-mails from certain individuals during a defined time period, all reports from a certain financial system, or copies of correspondence between specific individuals or departments. Under most rules, the guideline for producing answers to requests state that these documents be produced in their native electronic format rather than in paper, tif or pdf. Parties are not required to create items that don't exist, but ESI is different than paper, tif or pdf, so the ability for IT to respond to these document requests requires an understanding of the issues in the

litigation, strategies for your business and defenses to claims of the other side.

Request for admissions are exactly that. One side sends the other a series of questions that either they admit are true or deny. For instance, "Admit or deny that all e-mails sent by Jane Doe were not saved between June 27, 2001 and Sept. 10, 2003;" "Admit or deny that John Doe broke through the firewall and stole financial records on Dec. 6, 2004;" or "Admit or deny that Richard Roe was fired without cause."

Depositions under most state and federal rules are limited to six or seven hours at which individuals are asked questions before a court reporter (maybe a video camera as well) with lawyers representing each party present. Questions in depositions can be far-ranging and the lawyers cannot really coach the deponent (the person who is answering the questions). However, since few lawyers really understand IT, even if they ask IT deponents questions, the lawyers may not understand a technical answer so logical follow-up may not occur. Sometimes lawyers will bring their IT experts to depositions so they can coach the lawyers about probing IT issues. Under the discovery rules, IT professional can be deposed by a category of "the person or persons most knowledgeable" about lists of things like e-mail, backups, databases, Web sites related to the lawsuit, and the like.

Records Retention Policies

Because ESI has become fundamental to litigation, organizations need to have a records retention policy; otherwise, how can an organization without such a policy explain to a judge why certain ESI was retained and other deleted? State and federal laws and regulations require varying retention periods for records, such as seven years for the IRS and 50 years for the Food and Drug Administration. So every organization needs to analyze what types of records it has and which need to be retained.

When you become aware that a lawsuit may occur, the records retention policy must be changed regarding relevant records to the litigation. The legal term for this is "litigation hold;" however, the rules of evidence have always required potential litigants to save evidence, and if they destroy critical evidence, lose their case because of the intentional destruction which is call spoliation.

Of course, before ESI became critical, generally records were only paper stored in file cabinets or the desks of the individuals involved in the dispute. Now ESI is managed and controlled by IT, and as result, IT has a critical role in all litigation. The records retention policy may state that certain accounting records are retained for seven years for tax purposes, but the IT backup procedures will likely have no means to search old backup media to delete old records. Likewise, if the accounting data is part of an SQL database, it is likely that IT would not be inclined to search old records and delete outdated information.

Disaster Recovery

Everyone in IT knows that each computer will fail at some time since every box has components with a mean time between failures, so failure or disaster are a fundamental part of the use of IT. Accordingly IT plans for these failures or disasters by doing routine backup of systems and data to avoid business interruption. As an example, when my office had a flood on the 33rd floor of our building and our data center was shut down, our business was not adversely impacted since we had good backup procedures already in place.

IT sees backup as a disaster recovery issue; however, judges and lawyers think that copies of ESI are easily available to them since IT does backups regardless of the systems involved. As a result, before litigation and at least by the point of litigation hold, it is essential that IT and lawyers communicate about what ESI is available, in what

format, and for what time frame.

Cases

In 2006, the Federal Rules of Civil Procedure (and since then, many state rules as well) were changed to specifically deal with ESI. If you have been reading any reports of trials you will know that some very high-profile companies have lost millions of dollars as a result of destruction of e-mails (Zubulake v. UBS), failing to provide all 14,000 backup tapes of e-mails during discovery (Coleman v. Morgan Stanley), or hiding more than 41,000 relevant e-mails (Qualcomm Inc. v. Broadcom). All of these cases could have avoided such litigation disaster had the lawyers and IT been communicating.

When evidence has been destroyed (spoliated), a judge or arbitration panel can grant a verdict against the destroying party, fine the party or issue an adverse inference to the jury. An adverse inference is that the jury should assume that the party destroyed the evidence because it was adverse to their claims in the lawsuit. Most of the time juries will accept the judge's instructions and agree that the evidence destroyed was damaging, which is what happened in the Zubulake and Coleman cases.

Conclusions

Since ESI is prevalent in litigation today, the discussion about IT and ESI is a part of every lawsuit, and at some in your career it will likely impact you. It is impossible to avoid. This article should be a starting point for you to understand IT's role as more lawyers appear and ask for help.

Peter S. Vogel Contributing Writer
Peter S. Vogel (pvogel@gardere.com, 214/999-4422) is a trial partner at Gardere Wynne Sewell, where he is chair of the Electronic Discovery Team and co-chair of the Technology Industry Team. He was a systems programmer on mainframes, received a master's in computer science, and taught graduate courses in information systems and operations research. For 30 years, his law practice has represented buyers and sellers of computer technology and Internet services. He's taught courses on e-commerce law