Ethical Considerations in Electronic Discovery
Laurie Borski, Professional Ethics Chair
Conducting discovery in litigation once required no more than a copier, some boxes and a handcart. Suddenly, it seems the discovery process has now evolved from digital documents to electronic discovery, or e-discovery as it is more commonly known. The definition of "discovery materials" is no longer limited to tangible items but now includes emails, spreadsheets, word processing documents and other data files. Data is various forms, and the quantity of production is measured not in reams or boxes but in megabytes or even terabytes. Identifying responsive documents once may have entailed a trip to the client's office to search through boxes. Now that identification requires a search of all locations in which data can reside by qualified information systems personnel and computer forensics specialists.
The tools for managing discovery have evolved as well, from simply Bates numbering documents and preparing an index, to the use of web-based databases of electronic evidence. The courts have also kept pace with the progress in technology. District and county clerks are adding digital files and documents to allow for remote access via the Internet. More recently, state and federal clerks have progressed from paper and fax filings to permissive or even mandatory electronic filings.
In 2006, there were over 175 federal court opinions related to e-discovery issues. Over half of these opinions were devoted to discovery requests and spoliation/sanctions issues, with the remainder addressing the form of production, preservation/litigation holds, privilege/waiver issues and costs.1
While the technology has changed, the ethics of e-discovery are not far removed from that of traditional discovery. The duties owed to the client, the parties to the case and the court are unchanged. The major changes are simply in the technology employed and the quantity of data involved. Paralegals practicing in this area need to learn about e-discovery and the preservation and management of electronic evidence. Becoming a computer expert is not necessary, but you should realize that specialized knowledge could be required. Do not hesitate to call upon vendors and knowledgeable information systems personnel who can serve as valuable resources. Yo u may need to share the information learned on electronic discovery with your supervising attorney(s) or clients as well.
The Federal Rules of Civil Procedure were changed on December 1, 2006 to address electronic discovery, that is, the discovery of ESI or electronically stored information. Many states have already implemented similar changes or have proposed changes to address e-discovery issues.
In a nutshell, the federal rules changes:
(1) include ESI as a category under materials to be disclosed and in the description of materials included as business records;
(2) provide notice to the court early in the case that electronic discovery is contemplated; (3) compel discussion and agreement by the parties in the discovery conference as to how claims of privilege will be handled and whether these agreements will be memorialized in an order; and (4) the form or forms in which any ESI will be produced; (5) provide for limitations on production of ESI from sources not reasonably accessible because of undue burden or cost; (6) include a default form of production and specify that a party need not produce ESI more than one form; and (7) limit sanctions for failing to provide ESI lost as a result of routine, good-faith operation of an electronic information system.
One of a paralegal's premiere ethical considerations in e-discovery is to know and honestly represent your limitations. Electronic data is fragile; merely powering on a computer can change the data on a hard drive. And time is of the essence in recovering electronic data before deleted files are overwritten. A paralegal tasked with collecting electronic evidence should know that improperly harvesting data could result in irrevocable damage. This is not the time to employ "drag and drop" technology. Forensically sound copies of computer storage devices must be made using special hardware devices that are read only so as not to update or modify a file's date and time stamps. Exact bit-for-bit copies replicate hard drives and include deleted files, unallocated space and file stack rather than just making a copy of active files. 2
Many production requests seek files such as emails, word processing documents, spreadsheets, HTML and .PDF files in their "native format" which allows for the examination of metadata. Depending on the file, this metadata can provide creation, edit and copy history, identify the owner and user of the computer(s) on which the file was created or edited and reveal the identity of persons who were blind copied on emails. 3
Additionally, each digital file contains a unique "digital fingerprint" called a MD5 hash. If the case involves questions of stolen data or file origin, such as in intellectual property litigation, an analysis of this MD5 hash can be performed. 2 Examination of the MD5 hash will also verify a complete capture of data. 3
Data can reside in many locations and is not limited to just desktop and laptop computer hard drives and server backup tapes. Given a proper production request and a demonstrable need for the information, data may have to be collected from sources external to the normal hardware and software of a computer system such as PDAs, cell phones, external media (flash drives, SD cards, CDs, DVDs), voicemail and e-fax systems, swap files, online storage and web sites. Id.
Given the universe of ESI that is potentially available and responsive, a paralegal should keep in mind the requirements for fairness in adjudicatory proceedings set out in the Texas Disciplinary Rules of Professional Conduct and the law regarding obtaining evidence set out in Texas statutes:
"A lawyer shall not unlawfully obstruct another party's access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act." 4
The right of a party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions, including Texas, makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. 5
Arm yourself with knowledge so you will be prepared to enter the brave new world of e-discovery!
1 Case Law Update and E-Discovery News, Kroll Ontrack, Jan. 2007, Vol. 7, Issue 1. (www.krol-lontrack.com)
2 Defensive Exit Interviews and Records Retention, Jason Park; Law Journal Newsletters, Employment Law Strategist, July 2006.
3 Tame the Digital Tiger, Lauren Rogers, Litigation Solution, Incorporated, October 2006. (www.lsilegal.com)
4 See Rule 3.04, Fairness in Adjudicatory Proceedings, Tex. Disciplinary R. Prof. Conduct.
5 See Texas Penal Code, §§ 37.09(a)(1), 37.10(a)(3).
The author wishes to thank Lisa Kish of Kroll Ontrack for sharing her presentation on Electronic Discovery: Tips, Tactics and Technology.
Laurie Borski is the Chair of the Professional Ethics Committee of the Paralegal Division. She has served on the PD Annual Meeting and Election Committees and is a past president of the Alamo Area Paralegal Association in San Antonio.
If you have any questions regarding any ethical issue, please contact the Professional Ethics Committee.
Originally published in the Texas Paralegal Journal © Copyright 2007 by the Paralegal Division, State Bar of Texas.