E-Discovery

Originally published by Jason B. Freeman.

Electronic discovery (or e-Discovery) is the electronic aspect of identifying, collecting, and producing electronically stored information (ESI) in response to a request for production in a lawsuit. ESI can include emails, documents, presentations, databases, voicemail, audio files, video files, social media, web sites, and more.

The processes and technologies related to e-Discovery are often complex due to the sheer volume of electronic data produced and stored. Additionally, unlike hardcopy evidence, electronic documents are more dynamic and often contain metadata such as time-date stamps, author and recipient information, and file properties. Preserving the original content of the ESI and its metadata is necessary in order to avoid claims of spoliation or tampering with evidence.

The Scope of Discoverable ESI

Texas requires a responding party to produce ESI that is reasonably available to the responding party in its ordinary course of business. The responding party may not be required to produce certain ESI if it cannot, using reasonable efforts, retrieve the data or information requested or produce it in the form requested. However, permitting direct access to a responding party’s electronic storage device is generally discouraged by the courts. The benefits must outweigh the burden imposed on the responding party.

Courts determine the proper means and breadth of ESI discovery, and the appropriate format of ESI production, on a case-by-case basis by applying proportionality principles. When deciding the proper scope and production format for ESI, the court:

• Conducts an initial inquiry to determine whether the request is timely and comports with the law.
• Determines the availability of the requested ESI. In this inquiry, the responding party bears the burden of proving that either the material is not readily accessible or the request is unduly burdensome.
• Examines the requesting party’s need for the ESI in light of the specific issues, damages, and facts of the particular litigation by conducting a proportionality analysis using several factors including:
  • the likely benefit of the requested discovery. The court considers cumulative effects rather than viewing benefits and burdens in a vacuum;
  • the needs of the case, including both the relevance of metadata to central issues in the case and the availability of that information from another source that is more convenient, less burdensome, or less expensive;
• Further, the court may order other discovery or permit the requesting party to depose witnesses knowledgeable about the responding party’s information systems.

The Duty to Preserve ESI

Organizations and other potential litigants have a duty to preserve all potentially material and relevant information, including ESI, as soon as they know or reasonably should know that there is a substantial chance that a claim will be filed and they will become involved in litigation or a government investigation.

Because of the ever-increasing volume of ESI, perfection in preserving all relevant ESI often is impossible. However, a court may sanction a responding party for its intentional or negligent failure to preserve relevant ESI.

Best Practices to Preserve and Produce ESI

To best prepare and protect themselves, organizations and their counsel should consider the following practices regarding ESI:

• Implement a document retention policy.
• Issue a litigation hold, and cease document and ESI destruction practices once the preservation duty is triggered.
• Develop a discovery plan at the first sign of impending litigation.
• Immediately identify key sources of ESI and important file types.
• Never overlook metadata preservation. The need for metadata impacts how counsel must handle various aspects of e-Discovery, including preservation, collection, processing, and production.
• Avoid ESI self-collection unless the organization has staff who are properly trained in handling digital data.
• Recognize that deleting ESI from one medium does not necessarily mean that the ESI does not exist on other media.
• Be aware that the organization’s IT department may not be able to shoulder the e-Discovery burden alone. Identify and discuss alternative ways of meeting that need, such as counsel’s in-house litigation technologist or an e-Discovery vendor.
• If available, use a single document review platform to host and review all hard copy documents and ESI for review.

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