Electronic Data Records Law | How to Win E-Discovery

EDRM Expert

Standards and Guidelines for E-Discovery

E-discovery (the process of finding and disclosing electronic evidence in litigation) has become a sizable industry.  But the industry has emerged so quickly that e-discovery work is anything but uniform.  Performance of e-discovery work is evaluated largely on an ad hoc basis.  To change that, industry leaders have formed a group to set standards and guidelines.

The Electronic Discovery Reference Model pulls together law firms, e-discovery technical practitioners and the vendors of e-discovery and e-archival products.  It comprises several projects.  

One project is a set of metrics for tracking and measuring e-discovery activities.  Metrics can help litigants and courts assess which e-discovery is and is not required.  A general principle of e-discovery law is that a party should be required to expend no more than reasonable effort to locate and turn over electronic records.  Authoritative metrics can help reveal the difference between reasonable effort and unreasonable effort.

How to Search?

Another EDRM project is crafting a framework for defining and executing searches for electronic documents.  Different methods for searching (keyword, concept, heuristic and so on) a given group of records will yield different results.  An EDRM search framework could help litigants specify what they expect from e-discovery work and avoid surprise or disappointment after it is performed.

[Background: As the quantity of eDiscovery records soars, sampling of those records will become a more viable search technique. See McPeek v. Ascroff, 202 FRD 31 (DDC 2001), which endorses sampling of old backup tapes as a way to control discovery costs, rather than requiring the defendant to restore all tapes as the plaintiff requested.]

A third project is writing an ethical code of conduct for e-discovery practitioners. This code will help courts and litigants evaluate and gain confidence in the quality of e-discovery work by particular practitioners.  

Future Potential

EDRM has the potential to enable future technologies that can contribute discipline, efficiency and reliability to the e-discovery phase of litigation. It can also give the vendors of electronic archival systems direction as they develop products intended to facilitate e-discovery for future litigation. I foresee document search technologies using artificial intelligence and other advanced search analytics.

–Benjamin Wright

Electronic Mail Erased

Spoliation in Electronic Records Law | Sanctions

In records management one school of thought says employees should be expected to examine each of their e-mail, instant and text messages and make records retention decisions.  Under this school, the decisions are 1. do we keep this message or allow our IT system to destroy it quickly, and 2. if we do keep this message, do we keep it in retention category A, category B or category C. I'll call this the make-a-decision school of thought.  See the good discussion. 

Generally speaking I am skeptical of the make-a-decision school of thought.  The reason is that – in this Age of Information – few employees have the time, talent or disposition to make good decisions. The growth in the number of digital messages touching employees is accelerating.  The growth will continue to accelerate.

Cases show the legal system punishing enterprises for destroying records too early under the make-a-decision approach.

Arthur Andersen's formal records policy expected its professional auditors to make lots of records decisions (keep this record, destroy that record).  But AA's auditors were too busy doing their day jobs, so they procrastinated about making decisions on records related to their biggest client, Enron.  In other words, the digital age had swamped Andersen's employees with too many e-mails, faxes and papers. Therefore, they accumulated a backlog of records . . . records that demanded decisions, boring tedious decisions that employees hate.  (Keep it or destroy it? Keep it or destroy it?  Keep it or destroy it). Then, when crisis rose at Enron, AA's employees deliberated about what to do with this backlog.  They deliberated about how to interpret their record retention policy in this unexpected situation, and then (with the involvement of qualified counsel) they made decisions that later looked bad.  Andersen's employees destroyed records in the good-faith belief that they were following their policy consistent with advice of counsel. The legal system proceeded to destroy Andersen.

Another case: In Broccoli v. Echostar Communications Corp., 229 F.R.D. 506 (D.Md. 2005), employee Broccoli complained to management that a superior was harassing him sexually. Multiple managers discussed this complaint by e-mail. Later, after Broccoli sued, the employer could not produce records of the relevant e-mails exchanged among managers. The employer said its usual policy was to destroy (erase) e-mail in 21 days, and it had just followed its policy. The court sanctioned the employer for spoliating e-mail records. The court said it may be okay for a company to destroy e-mail quickly . . . so long as the company suspends destruction with respect to e-mails related to potential litigation like that brought by Mr. Broccoli. In effect the court said the employer should have applied an early litigation hold on e-mails related to Broccoli's complaint.

So what would the make-a-decision school of thought say about the Broccoli case? I interpret it to say that managers must be trained to recognize e-mails that pertain to potential litigation and then to save those e-mails specially (i.e., put them in category X). To me, that approach to e-mail retention does not normally work. Managers are ill-qualified to make such decisions. They don't have time to make those decisions with respect to the ever-growing deluge of e-messages (including cell phone texts, iPhone mail, telephone Twitters, instant message (IM) chat, BlackBerry calendar alerts, voicemails converted to text and more), coming at them.

I therefore offer a hypothesis:  Enterprises will fare better in the Age of Information if they tilt toward being very generous in their retention of electronic records . . . and tilt away from expecting individual employees to make one-by-one, keep-it-or-destroy-it records retention decisions.

This is a big topic, and it keeps me humble. I do not know everything. This post does not cover all the issues.  I aspire to explore more of the issues, and I welcome input!

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, thought leaders in e-message management.

Health-care eDiscovery | Email Destroyed

Duty to Preserve Electronically Stored Information (ESI)
Standard for E-mail Litigation Hold

When a lawsuit is filed or reasonably anticipated, parties are expected to apply a litigation hold to ensure records are not destroyed (which includes ensuring emails are not erased).

In a class action case concerning rights to state-paid medical care (connected with Medicare), a federal trial court has criticized Tennessee state agencies (Defendants) for failing to preserve electronic records.  Said the court:

"Defendants left their employees to decide on their own what to retain without evidence of any written instruction or guidance from counsel on what is significant o[r] material information in this complex action.  Under the State's computer system, after six to seven months emails were destroyed.  Some key custodians did not have backup tapes for their work station computer.  Given the complexity of this action, isolated statements [from counsel to employees] about the litigation hold over a period of several years are equivalent to the lack of any meaningful litigation hold." John B. v. Goetz, 2007 WL 3012808 (M.D. Tennessee Oct. 10, 2007), Memorandum, page 126.

The court went on to criticize the inadequate litigation hold at Defendants' contractors.

The court’s statements open the possibility for e-discovery sanctions against Defendants.    

The case reminds how courts can scrutinize e-mail retention decisions years after the decisions are made.  It illuminates the danger when an enterprise leaves retention and destruction responsibility in the hands of individual employees (or contractors), who may not be fully aware of the legal implications of that responsibility.  Accordingly, I advocate generous, centralized retention of enterprise e-mail and text messages.  By "centralized," I mean the records are retained in an enterprise-controlled archive such that employees cannot destroy their individual records.

Here a federal court second-guessed Tennesee state agencies.  But in theory the state involved could just as easily have been Iowa, Oregon, Nevada, Texas, Idaho or any other.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, leading provider of e-mail archival solutions for healthcare.  He also teaches e-data law at the SANS Institute.