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Few changes to the rules of procedure have been as groundbreaking as those pertaining to discovery of electronically stored media, or e-discovery. Although e-discovery has been slow to make much impact on some areas of legal practice, its effects on litigation are beginning to spread to even the most simple of cases, requiring more and more people to form at least a basic understanding of what it is, how it works, and what their obligations could be in a lawsuit.
In the e-discovery process, a party that is requested to provide electronically stored discovery materials must identify and preserve electronically stored information (ESI). Similarly, litigants must meet conditions pertaining to relevancy and privilege in order to be entitled to receive these materials, or to object to their production. For most situations, this will be similar to the process for regular discovery. But, with e-discovery, other aspects of the ESI may be relevant or irrelevant, and could create greater concerns.
If you are in an industry where the creation and retention of materials occurs in an electronic format, you should create and retain ESI according to an enforceable electronic records retention policy. You will want to ensure that all of your employees know about this policy and follow it. This will ensure a basis for truthfully being able to either provide materials or not without having to justify their existence or non-existence at every turn. Additionally, you will want to create an electronic records management (ERM) program. This will go hand-in-hand with the retention policy in justifying how and where ESI is stored. Both of these programs should be enacted before disputes arise in order to avoid the appearance of any sort of impropriety.
Enforce these policies and monitoring compliance will be essential, given the kinds of information that can be gleaned from e-discovery. Often, the target of e-discovery is not the record itself, but the meta-data embedded within it. For example, if a document has been opened and revised by multiple parties, that information may be stored in the hidden architecture of the file which is normally only visible to a computer. Part of your policy may be to determine what meta-data can be stored in the files. Sometimes this can be toggled off, sometimes it cannot. Additionally, if matters are only supposed to be available to certain members of your company, your policy needs to ensure that is the case, or else the meta-data could betray you.
On the other hand, your policy needs to identify the relevant ESI to be preserved, and implement measures to prevent its alteration or destruction. Similarly, it should weed out any duplicates or excess materials. Variations of a file may be relevant and, again, may reveal sensitive information you would otherwise wish not to disclose. Moreover, fewer files often means less expense when disclosing these materials pursuant to an e-discovery request.
Even when matters are appropriately retained under your ESI policies, they should be carefully reviewed prior to disclosure so that non-discoverable materials are not transmitted. Examples could include materials that are not relevant to the other party's requests, files containing attorney-client communications, or other matters that would otherwise be privileged or not subject to disclosure.
Usually, once the materials are disclosed, there is no way to “unring the bell.” However, if something is inadvertently turned over, it is sometimes possible to ask the court to require its return without copying or review by the unintended recipient. This process is sometimes called “clawback.” However, one should avoid engaging in clawback as much as possible, given that it often draws attention to the very materials you would want to keep confidential. Even though the court may require their prompt return without making copies or reviews, it is often impossible to keep the other side from having, at the very least, a cursory glance over the materials. The best approach to avoiding unintentional disclosures is to enact policies preventing them from occurring in the first place.
Given the relatively new nature of e-discovery, many still find it confusing and complicated. If your company has not yet enacted e-discovery policies, you should strongly consider doing so now. Consult your corporate attorney or locate one on our site.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.