Electronic Data Records Law | How to Win E-Discovery

Native Format Electronically Stored Information?

Collection, Production Tactics | Ordinarily Maintained or Reasonably Usable Form

In eDiscovery, ESI can be produced in many forms.  For both the requesting party and the producing party, the form chosen can impact strategic issues like cost, search-ability and ease of manipulation.  Form of production can be a contentious issue between litigants.

California’s new electronic discovery rules (Assembly Bill 5 - amendments to the California Rules of Civil Procedure) set a framework for negotiating the form of ESI production.  

Amended Section 2031.030(a)(2) of the Code of Civil Procedure provides:  “A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced.”  [Notice the words "testing" and "sampling". 

 They are a nod to the future of eDiscovery, where one-by-one review of records is impractical, so statistical methods are used instead.] 

Further, amended Section 2031.280(d) provides:  “Unless the parties otherwise agree or the court otherwise orders, the following shall apply: (1)  If a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable.”

Like the FRCP, this framework leaves lots of room for negotiation and disagreement.  

“When collecting a unit of ESI (such as an e-mail) within an organization, we might find it in more than one format,” says Greg Smith, eDiscovery specialist at Messaging Architects.  “It might be in network backup.  It might be an e-mail management system like Groupwise.  It might be in an archival system like M+Archive.  It might be in other formats and locations too.”

Leading courts like Williams v. Sprint/United have spoken of production of ESI in its “native format.” For courts like Williams, the rough idea is that a unit of ESI should come with its original meta data and structure, so as to enable better insight into what the ESI was and what it meant.  

According to Greg Smith, “The concept of native format might mean different things for different circumstances in an enterprise information system.  For example, the structure and metadata applicable to a given e-mail might be different depending on whether the email is collected from an electronic mail system like Microsoft’s Exchange or from an archive appliance like Symantec’s Enterprise Vault.  It’s my job to help trial counsel understand the different possibilities, evaluate options and then document/explain the format decisions and actions that are executed in ESI collection and production.”

–Benjamin Wright

Mr. Wright is an affiliate of messagingarchitects.com, experts in eDiscovery services.   Here is an ARMA podcast describing Messaging Architects' work in e-mail archiving, including its workshop for development of an email records policy in an enterprise.

E-Message Archives | EDiscovery Strategy

Electronic Discovery Reference Model (EDRM) XML Schema

Relevant Records vs Irrelevant Records

In a lawsuit, e-discovery forces the party holding records that are relevant to the lawsuit (the disclosing party) to reveal them to the other party (the receiving party).  The purpose of e-discovery is solely to disclose relevant records. It is not to disclose more information than is required, and it is not to enable a “fishing expedition” by the receiving party through the records of the disclosing party. [In lawyers’ parlance a “fishing expedition” is an unrestrained trawl through an opponent’s records in search of unspecified wrongdoing, such as bribes, kickbacks or misallocation of funds.]

For the disclosing party, over-disclosure is bad.  Inevitably the volumes of data disclosed in e-discovery will contain more than is required.  That excess data opens the opportunity for fishing by the receiving party, the adversary.

For example, imagine a lawsuit over a contract.  In e-discovery Party A discloses e-mails pertaining to the contract.  But receiving Party B may accidentally discern from the e-mails (and the attachments and meta-data associated with them) evidence of a different topic, such as apparent unauthorized use by Party A of trademarks owned by Party B.  The trademark topic was not the purpose of the e-discovery (it’s not the subject of the lawsuit), and Party A did not need to disclose evidence on that topic.

Accordingly, disclosing Party A aims to control e-discovery and keep it within rules.  Party A can better achieve its goal if disclosed data are broken into little units and Party A precisely explains each of the units.

The division of data into precisely-explained units is one potential outcome of the Electronic Discovery Reference Model (EDRM). EDRM proposes to set a uniform framework for e-discovery and standards for the exchange of e-discovery data.  It promises to enable tools for computer-aided review, sampling, snipping, tagging, and explaining of units of disclosed data.

One EDRM project is crafting an XML Interchange Format.  XML is all about tagging data elements so they can be processed (often automatically) and understood.  EDRM’s XML Format provides for tags like “Description” and “CustomDocumentInfo” to be associated with each unit of disclosed data, such as an e-mail message.  These tags can contain free-form text.  These text tags are an opportunity for the disclosing party to annotate, explain and interpret the disclosure.  A text tag can, for example, show why a record (i.e., e-mail X) is being disclosed, what it means and what its context is.  It might explain that e-mail X is a direct part of the employee discussion about the terms of the contract that is the subject of the lawsuit.  Such a tag can subtly help the disclosing party restrain the purpose for which the record is used.

Further, a savvy disclosing Party A could use these tags to help explain why record X is disclosed but not record Y.  In other words, in the tags Party A might make the case for why e-mail X is disclosed (it directly relates to the contract in question), but why the 10 replies to e-mail X are not disclosed (they don’t relate to the contract).  Party A could put in the tags explanations about the search criteria (search methogology or algorithm) it used to find and produce e-mail X, while not finding or producing the 10 replies.  For example, Party A might explain it searched for records containing the concept "mineral contract," but not for all the records touching on a record containing that concept.

Hence, a disclosing party could possess more tactical options if its archives (such as e-mail and instant messages) were in a system that is compatible with EDRM’s XML Format.  (I'll call these tactical options an "edge," but that's not to imply the disclosing party is getting anything unfair.)  When the disclosing party is required to turn over e-mails in e-discovery, it can use text tags to tell its side of the story with respect to each one of those e-mails.*

This edge grows more important as more of the records subject to e-discovery become small e-mails and instant messages (IM, Twitter, iPhone, BlackBerry or cell phone text), rather than larger “documents” like letters and memos.  The reason is that, roughly speaking, courts require that if part of a record must be disclosed, then the disclosing party must turn over the whole record, even if it contains other, irrelevant material.

–Benjamin Wright

Update: The disclosing party might use an XML tag to place a warning on particular units of data. For example, the tag might warn that a particular email contains sensitive personally-identifiable information, which must be kept secure and the review of which must be limited to only necessary personnel. See the story of a medical malpractice defense law firm that lost patient records connected with a lawsuit, thus causing the patients to be notified that their data had suffered a breach.

Related Article: How to Document Instant Messages

Local Government Email | Freedom of Information Act

E-discovery under State Open Records or Sunshine Laws

Police Video Records

Increasingly, public agencies are required to search for, locate, uncover and turn over e-mail records in response to freedom of information and open records requests.  

Generally speaking, under either state or federal law, a freedom of information act requires government to disclose requested records to citizens.  Sometimes a FOIA might be known as (or associated with) an open records act or a sunshine act.  

One example: A Kentucky judge required state government to give a man copies of e-mails between his wife, a state employee, and another state employee whom the man suspected was having an affair with his wife. (Associated Press, “Judge: Ky. Man Can See His Wife's E-Mail,” Nov. 20, 2007.)

Another example:

A newspaper requested under Arizona’s open records law access to records of e-mail by a county official on county computers. The official fought the request, claiming the records were personal and therefore not subject to disclosure. The Arizona Supreme Court held that the records must be shown to a trial judge. The judge should then decide whether they are personal records (deserving of privacy), which are to be withheld, or public records. (The Reporters Committee for Freedom of the Press, "Judge must decide whether e-mail is private," April 27, 2007.)

Third example:  A West Virginia judge held the state's FOIA required the state to release e-mails of the state's Supreme Court Chief Justice. The justice had send the e-mails from his government account to the head of a private coal company.  (The Reporters Committee for Freedom of the Press, "Even high court subject to FOIA in West Virginia," September 18, 2008). Although the released e-mails did not pertain directly to the court's internal administration or cases pending before the justice, they touched on more than merely personal matters.  They at least mentioned upcoming supreme court elections.

To respond to these requests takes time and resources on the part of agency IT staff. Haphazard records management makes the job more difficult.  Agencies therefore have incentive to keep organized, searchable e-mail records.  And they are wise to insist that all employees (including governors and supreme court justices) route all official messages to or through centrally-controlled archives.

These cases are just random examples.  I wouldn't be surprised to find similar cases in other states, whether Indiana, Ohio, Colorado, Tennessee, Arkansas, Indiana or wherever.

With the proliferation of digital gadgets in government, the quantity of records that are discoverable under FOIA is exploding.  One company that makes equipment for police departments has developed a video camera, which an officer would wear on his head, to record everything he sees and hears while on duty.  Veronica Dagher, "New Taser 'Shoots' Evidence," Wall St. J., 9/2/09.  Wow!  That would create a bonanza of government records and evidence.  [Query whether, to comply with privacy laws, police should publish warnings (such as big decals on squad cars) that officers are video recording all they see and hear.]

Update:  Reportedly, when Sarah Palin resigned as governor of Alaska, she cited $2 million as the cost incurred by the state to respond to FOIA requests about her.   FOIA is a growing expense for government.  Governments need to employ technology to contain that cost.  For example, any time government delivers information to one FOIA requester, it should publish that information on the web.  Web publication will avoid the cost of retrieving and culling the information again under future requests.

--Ben Wright

Mr. Wright, a practicing attorney, teaches the Law of Data Security and Investigations at the SANS Institute.