E-Discovery: Byte The Bullet Focus Column

E-Discovery: Byte The Bullet Focus Column
by Daniel B. Garrie & Maureen Duffy Lewis

A smackdown event on Jan. 7, 2008, resulted in a right hook to the chin of the plaintiffs’ attorneys in Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932. In a San Diego federal courtroom, the litigators felt the pain of an $8.6 million knockout sanction for failure to produce discovery and left everyone, lawyers and your everyday court watchers, speechless. The sanctions were imposed by Magistrate Judge Barbara L. Major for discovery violations … uhm, that would be e-discovery, thank you very much.

E-discovery has become another boxing ring main event in courtroom litigation. Recently, judges and litigators have approached e-discovery just like other forms of discovery. After a motion to compel, ordered compliance would or could look like a garage of horrors, with boxes stacked ceiling-high, ready to fall on some snooping lawyer who will spend numerous untold hours searching through the boxes of discovery and then copying items deemed relevant. The problem with e-discovery is that there are no physical boxes to search, there are just “those computers” and their millions of bits and bytes of data: 101000111000000011. And what garages are they stored in, anyway?

Lawyers often are confounded by the questions “Where do we start?” “Where do we look?” “Have they given us everything?” and “Who pays to retrieve all this mumbo jumbo?” These are just some of the questions that face lawyers and the courts when it concerns e-discovery. The paperless business world has in essence opened a new round in the boxing ring of court litigation. The courts in the state of California have called a timeout. As in true famous boxing parlance of the well-known television judge and real life boxing referee, Judge Mills Lane: “Timeout in the ring and I remind all boxers (litigators) that the ‘Marquis of Queensbury Rules’ shall apply in the ring.So litigators, let’s get it on!”

Recently, the American Bar Association Digital Evidence Project reported that over 90 percent of corporate information is created electronically, and 70 percent of that information is never printed to hard copy. Currently, the California Code of Civil Procedure does not deal with the discovery of electronically created information. To address this, the Judicial Council of took a step toward modernizing and amending Code of Civil Procedure Sections 2016 and 2031, along with the California Rules of Court 3.724 and 3.728. On April 25, 2008, the council unanimously approved “proposed legislation that would amend civil discovery law and improve the procedures for handling the discovery of electronically stored information in California civil cases.” The council had previously developed draft legislation and put it out for comment. The final version of the council’s proposal to amend California’s Civil Discovery Act reflects, in part, some of the comments received.

The proposed California legislation at points parallels the amendments to the Federal Rules of Civil Procedure, which were adopted on Dec. 1, 2006. Specifically, the proposed Code of Civil Procedure Section 2016.020 broadens discoverable information to include electronically kept data and allows the requesting party to specify the form of production. Electronic information encompasses e-mails, texts, IMs or any other electronically stored information. If the requesting party does not specify the form of production, then the producing party is required to produce the information in the form it is “ordinarily maintained or in a form that is reasonably usable,” according to Code of Civil Procedure Section 2031.280. Additionally, the proposed legislation includes a number of safe harbor provisions to provide for the accidental destruction or loss of electronic information that is certain to occur. The proposed legislation will not apply sanctions when the loss occurs in good faith, unless there are exceptional circumstances. The trickier part here is defining what good faith destruction or loss is, but that will most likely be answered by the appellate courts.

Different in substance from the Federal Rules of Civil Procedure are the provisions that set rules for motions to compel and motions for protective orders. Proposed Code of Civil Procedure Rules 20312.285(c)-(d) tie the legal construct “good cause” requirement to seeking motions to compel, which should alleviate the defendant’s need to automatically file protective orders for inaccessible information. The Code of Civil Procedure upsets the balanced approach that the federal rules take toward electronically stored information that is not “reasonably accessible.”

It is important to note that this language represents a shift from the original proposal put out for comment, which some commentators interpreted as putting pressure on defendants to seek protective orders over inaccessible data searches. This requirement can place on litigants an unfair cost element to assert that the information is not accessible, which arguably lands a heavy right hook against less wealthy litigants.

If the proposed code is enacted, with the massive amount of information that is stored electronically, there is certain to be privileged information that fortuitously finds its way into opposing counsel’s hands. Section 2031.285 of the proposed Code of Civil Procedure tries to remedy inadvertent production of privileged information much in the way as the current code does, by instructing lawyers to return protected material to opposing council or sealed to the court.

What the rules do not cover, and where ringside etiquette must take over, is when the party that inadvertently produced the privileged information does not discover its mistake. Here, much like the current Code of Civil Procedure, the court relies on legal ethics to govern.

Another round of the fight that is affected by e-discovery occurs during case management. If amended, Rule 3.724 of the California Rules of Court would call for parties to meet and confer at least 45 days in advance if it is reasonably likely that e-discovery will be required. (In this weigh in, the litigants would need to; indicate the form of which information will be produced, schedule deadlines to produce such information and decide on the different types of privileged information or work product that will be sought after for protection.

The code in its current form allows companies to rope-a-dope around issues of e-discovery. The proposed changes seek to create conformity, and companies operating in California will need to comply with these requirements no matter how much they like to jab, bob and weave.

One result that is likely to come out of the new rules is that companies both public and private will have to draft information management policies that address digital information and e-discovery. Moreover, the Code of Civil Procedure will compel companies to synchronize the policies they draft with the company’s underlying technologies to help prevent sanctions for discovery violations in state court in so much as companies that operationally succeed in this task will not only realize legal benefits, but they will likely see a decrease in their legal costs. Why?

Currently, companies produce a great deal of data for review to counsel that is not relevant. In the new world, companies that properly synchronize e-mail and digital information management policies with their technologies will very likely be able to produce fewer documents, with greater relevancy and thereby lower the companies’ legal fees and costs.

It seems almost certain that California will adopt some amended set of rules to address e-discovery, because many state court judges have expressed the need for an amended set of rules to govern e-discovery and mitigate current costs and confusion. Look for 2009 to be the year of the rules, and just as that famous boxing announcer Jimmy Lennon, would shout into the overhead microphone from center ring: “box on!”

* This is  an abridged version of an article ” written by Daniel Garrie and the Honorable Maureen Duffy Lewis published in the Los Angeles Daily Journal.

** Mr. Garrie is lawyer, discovery referee, forensic neutral, and technologist. Mr. Garrie is recognized as one of the eminent thought leaders in electronic discovery. Mr. Garrie is a managing partner at Law & Forensics, a national legal risk management consulting firm, and serves as an e-discovery arbitrator and special master all over the United States. He has also held technology positions in both the private and public sector. He can be reached at daniel@lawandforensics.com.