Determining the Scope of Preservation of Evidence

The duty to preserve evidence requires the producing party to make a good faith effort to identify and manage relevant discoverable information.   Once the party recognizes when the duty to preserve attaches, the next step is to determine what potentially discoverable information must be preserved.  See,  Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 336 (D.N.J. 2004) (“…while a litigant is under no duty to keep or retain every document in its possession, even in advance of litigation, it is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation.”).  And because the vast majority of business information is now generated electronically without ever being printed to paper, the scope of preservation naturally includes electronically stored information (ESI).   Determining the scope of preservation of ESI presents a great challenge and must be balanced with a party’s right to continue to manage its electronic information and operate its business in a relatively normal fashion.

Preservation issues should be addressed at the outset of litigation, and both sides should be prepared to discuss the matter at the initial meet and confer sessions.  All parties are responsible for taking steps to preserve relevant evidence, and pursuant to Fed. R. Civ. P. 26(b)(2)(C) need to consider the cost, burden and necessity of preserving the information.  In Colorado state court, there is substantially less case law related to preservation, especially of ESI, but a good rule of thumb would be to ensure that one conforms to the requirements under the Federal Rules as well as any unique Colorado requirements.

Following are some suggestions to assist you in determining the scope of preservation:

• Consider the complexity of the case and seek cooperation, common ground, and fiscal reasonableness.
• What is the cost of production compared to the amount in controversy?
• What are the resources of each party?  What is the ability of each party to control costs, and what is its incentive to do so?
• What is the relevance of the evidence relative to the claims and defenses in the case?
• Consider the need to protect privileged, proprietary, or confidential information (including trade secrets).
• Know where a party’s electronic information may be found.
• Avoid unreasonable, overly broad, burdensome, or unnecessarily costly requests to produce ESI.  Consider collecting data from repositories used by key individuals rather than searching through an organization’s entire electronic storage systems.
• Apply reasonable selection criteria (search terms, date restrictions, folder designations, etc.).
• Determine the need for preservation and production of ESI that may not be apparent to ordinary employees or a party’s records custodians.
• What is the ease of accessing the information, and is it available from other sources?
• Is the ESI stored in such a way that it is unreasonably more costly or burdensome to access?  See, Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 324 (S.D.N.Y. 2003) ("...plaintiff entitled to all emails and electronic documents relevant to employment discrimination claim, including those only preserved on backup tapes; however, given burden and expense of restoring inaccessible backup tapes, a cost-shifting analysis is appropriate.”)
• Could a subset or representative sample of the requested ESI be provided to determine whether production of additional information is warranted?
• Identify potentially relevant materials that are most critical or most difficult to preserve/collect.
• Know document retention and destruction policies and practices--as soon as the duty to preserve has attached, immediately suspend any document destruction or data deletion policies until they can be reviewed to ensure compliance with preservation duties.
• Has a party deleted, discarded or erased any ESI after litigation was commenced, or after the party was aware that litigation was reasonably foreseeable? (Spoliation is defined as the destruction or failure to preserve resulting in the loss of evidence in pending or reasonably foreseeable litigation. Silvestri v. General Motors, 271 F.3d 583, 589 (4th Cir. 2001)).

It may be possible to reach a stipulation as to the extent of preservation required in a given case.  Where a stipulation is not reached, it is wise to advise the opposing party in writing as to the scope of preservation duties you believe they have.  See, e.g., Optowave Co. Ltd. v. Nitikin, 2006 U.S. Dist. LEXIS 81345 at *30 (M.D. Fla. Nov. 7, 2006) (finding that notice from opposing counsel about relevant categories of information put party on notice about scope of preservation duty).  Likewise, it is wise to err on the side of over-preservation of evidence of one's own data, especially where the potential damages or sanctions for failure to preserve are significant.

When Does The Duty To Preserve Evidence Arise?

When does the duty to preserve relevant material arise?  Generally, it arises when litigation or an
investigation is “reasonably anticipated.”  Without question, the duty to preserve begins when a
Summons and Complaint is received.  However, there may be times when a pre-litigation dispute
is reasonably anticipated to lead to litigation, in which case a litigation hold notice should be
issued.   In Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist.
LEXIS 40136 at *23 (D. Colo. May 12, 2009) the court found that the obligation to preserve
evidence may arise even earlier than the actual filing of a lawsuit if a party has notice that future
litigation is likely.  Of course, for the plaintiff, the duty to preserve evidence normally arises well
before the filing of the lawsuit.  While there is no bright line regarding how early a plaintiff’s
duty to preserve arises in the process of contemplating and preparing to bring a lawsuit,
plaintiffs’ counsel should err on the side of caution and advise a client that there is a duty to
preserve as soon as the engagement begins to evaluate potential claims.

Answer the following questions to determine if the duty to preserve has been triggered.

• Do the known facts suggest that litigation is likely?  Answering this question can be tricky, and requires a thorough examination of all known facts.
• Has a consumer or customer complaint been received that clearly and credibly threatens suit?  A letter from a customer requesting a refund or suggesting that they will sue without describing the alleged wrongdoing, injury, or damages, probably does not warrant a hold.  If the letter is from the customer’s attorney, making a credible demand and threatening suit, then the duty to preserve is triggered.  In Asher,  plaintiff’s counsel sent two separate letters to defendant. The first letter expressed plaintiff’s desire to settle a warranty claim and did not threaten litigation.  The subsequent letter sent by plaintiff’s counsel made a claim for damages and set a 5-day deadline for payment.  The court found that the duty to preserve was triggered upon receipt of the second letter.
• Have there been repeated, specific complaints about a particular issue? In Computer Assoc. Int’l v. American Fundware, Inc., 133 F.R.D. 166, 168-69 (D. Colo. 1990), the court found that during pre-litigation meetings, one software company was explicit in its communication to the other software company that it believed the other company was copying its source code, thereby triggering the duty to preserve evidence related to the source code.
• Does legal counsel anticipate a lawsuit or investigation? There are times when counsel becomes aware, either through the media, employees, or other sources, that litigation or an investigation is possible.
• Do company representatives know of the possibility of a lawsuit?
• Has Plaintiff decided to file suit?
• Has a Summons and Complaint been received?  This is one of the few bright line points where a duty to preserve always exists no later than the receipt of a Summons and Complaint.

All of these factors should be considered when evaluating when the duty to preserve arises.  Once it has been established that preservation of relevant evidence is required, the next step in the process is to determine the scope of preservation. This topic is a hot potato, and one that directly impacts the cost of litigation and the risk of future discovery sanctions for failure to preserve. I’ll address this issue in future posts, focusing on electronically stored information, as well as discovery of social media.

Rule 26(f) Conference Checklist

             F.R.C.P. 26(f) requires that all parties confer “as soon as practicable—and in any event at least 21 days before a scheduling conference is set” to discuss “the nature and basis of their claims and defenses,” “the possibilities for promptly settling or resolving the case,” “arrange for the disclosures required by Rule 26(a)(1),” “discuss any issues about preserving discoverable information,” and “develop a proposed discovery plan.”  The discovery plan prepared by the parties should address “changes . . . in the timing, form, or requirements for disclosures under Rule 26(a),” “the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues,” “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced,” “any issues about claims of privilege or of protection [of] trial-preparation materials,” and “what changes should be made in the limitations on discovery imposed under these rules . . . .”

            C.R.C.P. 16(b)(3) provides a similar requirement under Colorado law, requiring the parties to “no later than 15 days after the case is at issue . . . confer with each other about the nature and basis of the claims and defenses; the matters to be disclosed pursuant to C.R.C.P. 26(a)(1); and whether a Modified Case Management Order is necessary.”  While the specific requirements of C.R.C.P. 16(b)(3) are less detailed than F.R.C.P. 26(f), it is a best practice to follow the federal guidelines in state court conferences.

            This initial conference is also an excellent opportunity to outline additional time and cost-saving measures.

            One best practice is to provide to opposing counsel via letter a proposal for the following items.  This serves both to streamline and guide the 26(f) conference and to create a record of the proposals and good faith efforts made to streamline discovery.

            The following is a recommended list of items that should be discussed at a Rule 26(f) conference:

Nature and Basis of Claims and Defenses:

- Plaintiff should inquire into anticipated defenses if Answer not yet filed, or for explanation of affirmative defenses where presented

- Defendant should inquire into factual basis for claims where not specifically articulated in Complaint

Settlement:

- Make initial/follow-on settlement offers if appropriate

- Discuss timing of future settlement efforts and mediation in light of discovery schedule

Initial Disclosures, ESI, Preservation of Information, Production Format:

- Discuss scope of appropriate initial disclosures where appropriate
- Discuss types of ESI that may be relevant, including local storage, networked storage, individual employee computers, smart phones (repositories of text messages and photos), corporate blogs and wikis, individual and corporate social media information on Facebook, blogs, Twitter, corporate voicemail, personal and corporate instant messaging, calendaring systems

- Where Electronically Stored Information exists (nearly every case), discuss the extent and structure of each parties ESI and consider agreeing that the parties will produce an outline of their ESI storage and structure to streamline requests and production.  Overview of ESI systems should include discussion of:

                        - Date ranges for review

                        - Name and role of ESI custodians

                        - ESI system types and structure (including individual workstations, shared drives, etc.

                        - File types that will be searched

                        - Search terms that will be used

- Counsel should familiarize themselves with their own client’s ESI structure and information before the Rule 26(f) conference

- Consider agreeing that, following receipt of outline of ESI custodians and structure, each party may nominate 5 ESI custodians in opposing party for preservation and review

- Discuss format for production of documents (e.g. PDF files with OCR layer provided by email to opposing counsel where size permits, otherwise by US Mail or courier)

- Discuss importance that documents be produced in the order in which they are kept in the ordinary course of business

- Discuss necessity and form of protective order for confidential documents

- Agree that, where native format of ESI differs from production format, parties will additionally produce document in native-format where specifically requested (i.e. Excel spreadsheets (.xls), QuickBooks files (.qbb), etc.)

- Address scope of potentially relevant information including ESI, and appropriate preservation measures

- Discuss rolling production time-frames in light of discovery schedule

Privilege Issues:

- Address any case-specific privilege issues

- Agree on timing of disclosure of privilege log and format for log
- Agree that documents created after a certain date (often case filing date) need not be included on privilege log

- Agree to claw-back provision that inadvertent production will not waive privilege

- Consider agreeing that each side may designate up to 20 documents from privilege log for in-camera inspection

Proposed Discovery Plan (for inclusion in proposed scheduling order):

- Discuss potential for informal discovery

- Number and names of deponents and time limitations, location

- Number of written discovery requests

- Discuss number and deadline for disclosure of expert witness reports

- Discuss whether limitation/elimination of expert depositions is appropriate

Additional Cost/Time-Saving Measures

- Agree that all discovery disputes will be discussed by phone call between counsel, not via letter

- Agree that all depositions will be scheduled by agreement (no unilateral notices)

- Agree that all deposition exhibits will be numbered sequentially

- Agree that, if FRCP don’t apply, neither side will be entitled to communications with experts not discoverable under FRCP 26(a)(2)

            The agreements reached during the Rule 26(f) conference, as well as the competing views of the parties where no agreement was reached, should be documented in a joint report to the Court that must be filed within 14 days after the conference.

Discovery of Social Media Information: Privacy, Authentication, and Practice Tips

Last week’s blog post briefly discussed the evolution of FRCP 34 as it relates to the admissibility of electronic compilations of data for discovery purposes, and how social media, with its cache of potentially discoverable electronic information, has impacted the e-discovery process.  Generally speaking, the courts treat social media information the same as other electronic data obtained for discovery purposes.  However, social networking sites represent a new frontier for electronic discovery and bring with them a novel set of issues to be explored. 

Not only is the admissibility of ESI from social networking sites subject to application of the Federal Rules of Civil Procedure, evidentiary criteria for electronic data are further defined by the Federal Rules of Evidence (addressing such matters as relevance, authenticity, prohibition on hearsay, reliability, probative value, etc.). Case law provides a significant repository of information related to the discoverability of social media, including decisions related to privacy; First Amendment issues; Fourth Amendment issues; application of the Federal Rules of Civil Procedure and Federal Rules of Evidence; duty to preserve/spoliation of evidence; and authentication.  Two of these issues are frequently litigated: user privacy rights and authentication of data.

Privacy issues are complex, and discovery of social media raises not only First and Fourth Amendment issues, but may also involve the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2701 (1986) (also referred to as the “Stored Communications Act” (“SCA”)). Courts are grappling with the role of traditional privacy rights as they relate to discovery of social media and have found that individuals generally do not have a reasonable expectation of privacy with regard to information they provide on social networking sites.

In Ledbetter v. Wal-Mart Stores Inc., 2009 U.S. Dist. LEXIS 126859, No. 06-1958 (D. Colo. Apr. 21, 2009), plaintiffs filed a personal injury action against defendant Wal-Mart, alleging physical injury, mental trauma, and loss of consortium.  Defendant subpoenaed Facebook, MySpace, and Meetup.com to obtain Plaintiff’s personal information, and plaintiff filed a motion for protective order claiming physician-patient and spousal privilege. Magistrate  Judge Watanabe denied plaintiff’s order, finding that the information requested in the subpoena was relevant and reasonably calculated to lead to the discovery of admissible evidence.

With regard to authentication of ESI from social networking sites, some courts have suggested that the ease with which social media data can be manipulated creates the need for a higher standard of authentication.  So, while ESI from social networking sites can be discoverable, it is not considered to be self-authenticating. In Griffin v. Maryland, No. 74, 2011 WL 1586683, at *1-10, *4 (Md. Apr. 28, 2011), the Maryland Supreme Court found that the State failed to provide extrinsic evidence to properly attribute a MySpace profile and postings to the purported author, and remanded the case for a new trial.  The court stated that "anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password."

E-discovery cases continue to grow in number and complexity, and federal e-discovery decisions are sometimes inconsistent. Internet usage should be given a high priority when advising clients as the potential for a client to damage their own case is very real. Alternately, social media provides fertile ground for the discovery of useful information about adverse parties.

Some practice tips to consider:

1.         Before issuing a subpoena to a social networking site, seek discovery of social networking information from the opposing party first.

2.         Public searches yield a surprising amount of information about which social networking sites a user participates in, what their user profile includes, and what type of information they are posting.

3.         Don’t hire a private investigator to “friend” the opposing party on any social media sites.  And certainly don’t attempt to contact the opposing party yourself via any SNS.  Such approaches are likely to backfire, and are likely unethical if they involve deceit.

4.         Advise your client to avoid spoliation of evidence—as soon as claims are reasonably known to exist, prepare a plan with your client to preserve any social networking information that may be relevant.  It’s likely insufficient to assume that the social networking provider is maintaining an archive of posts and information—you or your client should preserve and maintain an archive of this information on a regular interval.

5.         When a claim does arise, notify the opposing party with the specifics of what social networking information you anticipate will be relevant in this case and instruct them to ensure this information is properly preserved.

6.         Remember – just because something is available electronically doesn’t mean that it can or should be produced instantly.  It may not even be subject to search.

7.         If your case is very complex, consider “unbundling” discovery tasks. Consider assembling a litigation management team to tackle electronic data discovery tasks.

8.         Maintain at least a general familiarity with developments in social networking in order to properly advise clients about how recent changes and developments may alter these recommendations.

9.         Plan in advance for proper authentication of electronic information obtained from social networking sites.

I will be posting more about the unique challenges posed by discovery of electronic information from social media networking sites, including ways to authenticate electronic data.  I’ll also address issues related to the preservation and spoliation of electronic evidence (including Tweets and text messages, to name just a few of the many sources of electronic evidence).

Written Discovery: Re-Thinking the Definition of "Documents" in the Social Media Age

The social networking era presents attorneys with new challenges that directly affect client representation.  Law dealing with electronic discovery obtained from social networking sites is currently in a state of flux, and attorneys need to be familiar with which types of electronic data are discoverable. The answer is not always clear.

What is clear is that information stored on social media sites is becoming increasingly critical in litigation.  What may have once been a communications medium primarily used by youth is now a mainstay of business communications.  New sources for potentially discoverable social media information include Facebook profiles and messages, Twitter “tweets” and direct messages, LinkedIn profiles and messages, information on Google+ and countless other social media services.

While there may be complications in compelling discovery from some of these sources, at a minimum the definition of “documents” used in written discovery requests, as well as the specific text of requests for production, should specify that the information sought includes these categories of information.  Before discovery even begins, parties should ensure that litigation hold letters sent to their own clients as well as opposing parties also specify that these categories of social media information are likely to be relevant to the disputes in a given case and that they must be appropriately preserved (and preservation of social media is another emerging field—something that I will cover down the road).

To date, there are no new discovery rules that specifically govern social media.  Old rules are being applied to new technology, and the approach of the Courts has generally been to treat social media information the same as other electronic data obtained for discovery purposes.  Federal Rules of Civil Procedure 26, 30, and 34 apply, and in effect broaden the definition of paper documents to include social media information as discoverable electronic data.

FRCP 34(a) was amended in 1970 to include discovery of data compilations.  Dramatic growth in the type and volume of electronically stored data resulted in further amendments to Rule 34 in 2006, to more clearly define discovery of electronically stored information (“ESI”) as being the same as discovery of paper documents. Rule 34(a)(1) is expansive, and is intended to be broad enough to cover the types of ESI available in 2006, and flexible enough to cover future technological developments. Rules 26(b), 26(c), and 34(b) provide guidance on whether and in what form ESI should be produced.  Therein lies the rub -- social networking sites contain a potential treasure trove of discoverable electronic data – but when does this type of data fit the traditional definition of the term “document” and what factors come into play in making such documents admissible evidence?  Lawyers and Judges are only just beginning to navigate this complex realm of discoverable information.

Two key issues are at play when it comes to discovery of ESI from social networking sites. First, what right to privacy do users have when personally expressing themselves in this new area of communication?  Second, because the type of data available on social media can be easily manipulated, what steps should be taken to authenticate data obtained from social media?  Answering those questions and meeting the criteria set forth in the Federal Rules will bring us closer to defining the term “document” as it relates to discovery of ESI from social media.

My next post will address the issues of privacy and authentication of social media discovery.  The courts have held both for and against protecting a users’ privacy, and have suggested that discovery of ESI from social networking sites be held to a higher standard, given the ease with which it can be manipulated.

Written Discovery Requests: Preliminary Statements and Objections

This post is part of my litigation checklist.


Responding to discovery requests can be time consuming but requires considerable care.  If you’ve been diligent in developing and strategically executing your discovery plan, responding to discovery requests is much easier.  As you make your way through the process, it’s essential to keep in mind some potential pitfalls:

-        If written response to discovery is not made timely, any objections you may have, including claims of privilege, may be waived.

-        If a written discovery request is proper, do not withhold evidence or facts that are favorable to your case.  Failing to produce such information may preclude you from using it at trial. When responding, be sure to produce all information that you have or that can be reasonably obtained.  

-        Don't delegate the drafting of discovery requests to  your client.  They likely do not fully understand the language that is customarily used to respond to discovery requests, or the vital importance of a careful responses and objections, and it is incumbent upon you to make sure this is properly handled in your discovery responses.

Responses to written discovery requests normally start with a preliminary statement and objections.  While much of this is boilerplate, and I am not a fan of preliminary statements that run several pages, it can be helpful to set up preliminary objections to provide a fall-back in the event you fail to make a specific objection to a discovery request that becomes and unanticipated disputed issue at a later date.  Additionally, well-crafted preliminary statements and objections can facilitate shorter and more pointed responses to specific discovery requests, actually saving time and space in the long run.

A template saves time and is customizable to the needs of the case.  Following is some suggested wording: 

GENERAL OBJECTIONS

1.              Plaintiff objects to Defendant’s Interrogatories, Requests for Production, and Requests for Admission to the extent that they incorporate or set forth definitions,  instructions, or requirements that attempt to impose upon Plaintiff burdens and obligations beyond those contemplated by the Colorado Rules of Civil Procedure.  Plaintiff will respond as required by the applicable provisions of the Colorado Rules of Civil Procedure and any purported instructions, definitions, requirements, or requests to the contrary will be disregarded.

2.              Plaintiff objects to Defendant’s Interrogatories to the extent that they seek information protected by attorney-client privilege or work product doctrine.

3.              To the extent any Interrogatory can be interpreted as requiring Plaintiff to identify or produce any document or set forth any information which is in the possession, custody, or control of Defendant or otherwise, that has been available to or is otherwise not in the possession of Plaintiff, or is equally accessible to Defendant,  Plaintiff objects hereto.

4.              Plaintiff objects to Defendant’s Interrogatories to the extent that they seek documents or information not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence.

5.              Plaintiff has not completed discovery, investigation, or preparation for trial in this matter. Accordingly, documents and information are provided without prejudice to Plaintiff’s rights to make further objections and present additional information and documents which are hereafter discovered or which further discovery and investigation may indicate are relevant to this action and called for by Defendant.

6.              These general objections apply to each and every one of the following responses and objections, and failure to repeat an objection in response to a specific Interrogatory, Request for Production, or Request for Admission shall not be deemed a waiver of these general objections.

These General Objections are precisely that – general.  In particular, the blanket objection to attorney-client privilege and attorney work product should only be seen as a fallback position, and the contingent "to the extent" phrasing likely will not suffice--it's best to specifically object to each instance where there are responsive materials protected by privilege or work product.  It is generally still necessary to object to a specific interrogatory, RFA, or RFP.  The objection must be applicable to the case, stated clearly and concisely, and supported by legal authority.  And while a Pulitzer Prize has never been awarded for an objection to a discovery request, a judge is likely to take note of clearly-stated, fully-supported objections, and will appreciate the careful analysis and attention that you have given to your response.

Responding effectively to requests for discovery can require many hours researching cases that support your position that a discovery request is overbroad, burdensome, vague, oppressive, subject to attorney-client (or other) privilege, or not likely to lead to admissible evidence. To this end, in the coming weeks I will be writing a series of articles that will address some of the common objections that are made to discovery requests. Hopefully this information will help make the task less cumbersome and daunting, and will assist you in tailoring your objections to some of the most common discovery issues.   

Jeff Vail is a Denver, Colorado business litigation attorney at The Law Office of Jeff Vail LLC.

Litigation Flowchart

I'm working on assembling a flowchart for civil business litigation in Colorado state and federal courts, which will eventually link to associated checklists.  Here's the first draft: