E-Discovery Field Guide

Introducing the Field Guide

As part of its commitment to providing sophisticated and cost-effective litigation services to individuals and businesses in ME and throughout the country, Bernstein Shur is excited to introduce its new newsletter, the E-Discovery Field Guide.

No matter the forum or subject matter, litigation is often expensive, time-consuming, disruptive, and stressful. One significant part of the litigation process that has become increasingly daunting in recent years is discovery—that is, the formal process of exchanging information between parties to a lawsuit. Discovery, which not too long ago centered on paper documents, has evolved into something completely different today, in large part because of the explosion of new data and new technology.

For example, according to some estimates, more than 90% of all data in the world was created after 2015, and the statistics for average daily data usage in 2017 alone are staggering: 5.2 billion Google searches, 4.3 billion Facebook messages, 269 billion emails, and 22 billion text messages each day. To live in today’s world is to constantly create and consume electronic data. And much of that electronically stored information, or ESI, has become increasingly important in litigation. Litigants and their attorneys must look to where the evidence is, and that requires consideration of novel and challenging issues relating to ESI and electronic discovery, or “e-discovery,” including questions about how to identify, collect, process, review, and produce ESI.

Through a series of articles, the Bernstein Shur E-Discovery Field Guide will tackle the e-discovery issues that individuals, businesses, and attorneys may encounter in modern state and federal court litigation, including topics such as new developments in e-discovery rules, case management and controlling ballooning e-discovery costs, e-discovery tools for small businesses and small law firms, document preservation practices and litigation holds, technology assisted review and artificial intelligence, using ESI search terms, new sources of ESI, confidentiality and the attorney-client privilege, and much more.

The attorneys at Bernstein Shur understand that e-discovery—like litigation generally—can be challenging, and even overwhelming at times. We hope this newsletter will provide some clarity to everyone involved in the process.

E-Discovery and ESI: What is it and Why Does it Matter? 

Discovery, in its broadest sense, refers to the process of parties in litigation exchanging information through various mechanisms, such as interrogatories, document productions, and depositions. E-discovery is one aspect of the larger discovery process, and it refers to the identification, collection, processing, review, and production of electronically stored information.  

ESI is everywhere in today’s world, and common forms include: 

• Emails and attachments
• Word, Excel and Powerpoint documents
• Voicemails
• Text and instant messaging
• Social media postings and internet history
• Database information 
• Video and audio files
• Digital images
• Metadata

These forms of ESI can be found in an unending variety of locations, devices and programs, including: 

• Servers and networks
• Desktops and laptops
• Smartphones and tablets
• Databases
• Hard drives and thumb drives
• CDs and DVDs 
• Cloud-based storage

Given the continued proliferation of ESI, e-discovery has become a permanent fixture of modern litigation. From employment disputes and personal injury lawsuits to small or large commercial disputes to class action litigation, it is hard to imagine any case today that does not include at least some ESI and e-discovery. Indeed, nearly all businesses use e-mail, create Word and Excel documents, compile accounting data, and maintain a website and social media presence. And individuals of all ages will send e-mails or text messages, or participate in social media, creating their own ESI trail. All of this data falls under the umbrella of ESI and may be subject to discovery depending on the scope and needs of the case.

For these reasons, e-discovery knowledge is more important than ever for parties and attorneys. E-Discovery also is closely linked with broader information governance practices and being “litigation ready,” which includes having systems in place for organizing, preserving, and collecting electronic data when litigation needs may arise. And while some discovery costs always are inevitable, a comprehensive e-discovery plan that leverages available technology is the best solution for a cost-effective litigation strategy that wins the day.

Trends to Watch in 2018  

E-discovery rules, procedures, and technology evolve every year. This creates new challenges for clients and attorneys, but it also opens the door to new opportunities for creative and effective e-discovery strategy. Here are four trends in e-discovery that we will be watching for in 2018: 

Implementing E-Discovery Technology In Smaller Disputes 

Many cases, particularly in ME, do not lend themselves to applying the full suite of exotic e-discovery technology because the costs of e-discovery would quickly overtake the amount of money at stake in the case. This is particularly true given the continued pressure on law firms and businesses to reduce litigation costs. But as technology improves and costs decrease, cases of all sizes may benefit from implementing new e-discovery tools. Such technology might include forensic data collection and analysis to efficiently and thoroughly compile ESI, or analytical software, artificial intelligence, and predictive coding programing to take on tasks previously performed manually (such as sorting responsive and non-responsive documents, screening for privilege and work product, or identifying key documents for the case). Law firms and businesses of all sizes should continue to explore e-discovery technology and how it can be leveraged for their cases. 

New Types And Sources of ESI  

The expanded use of social media platforms, mobile messaging applications, “chat” programs (Slack, Jabber, Instant Bloomberg), and other technologies will continue to create new forms of ESI, including some that may pose challenging collection, deletion, access, and review formatting issues. (For example, SnapChat and other “ephemeral” messaging applications may regularly destroy data, making preservation near impossible.) Parties must understand how these platforms are used and how the data should be handled during discovery. Another related e-discovery issue is a shift towards cloud-based storage (DropBox, Box, Microsoft OneDrive, Google Drive, Apple iCloud), where e-mails, documents, and data may be hosted by third parties. Cloud-based storage can make even finding data for litigation a challenge, let alone issues of preserving and accessing data hosted by a cloud provider. It no longer may be enough to search a company server, a “My Documents” folder on a computer, or a file cabinet for records. Clients and attorneys must keep up with these complex issues to comply with their discovery obligations. 

Evolving E-Discovery Rules 

Following amendment to Federal Rule of Civil Procedure 26 in 2015, courts and attorneys have grappled with the new rules, including clarification about the “proportionality” language in Rule 26(b)(1) and the requirements for responding to document requests. As more opinions are issued and experience develops, the law and discovery practices will continue to evolve, and courts may crackdown even more tightly on discovery violations. It also will be interesting to watch whether more states adopt procedural rules in line with the revised federal rules, and how such rules are enforced by state courts. 

E-Discovery Case Management  

As procedural rules change and e-discovery technology evolves, court management of the e-discovery process will be another hot topic to watch for in 2018. In particular, it will be interesting to see if more courts play an increasingly active role in overseeing e-discovery issues, such as mandating ESI protocols early in a case. Another case management trend might be a push towards “phased discovery,” where initial discovery is limited to key preliminary issues that may resolve (or at least narrow) the case before broader, more expensive discovery occurs. At the same time, litigants are expected to face growing pressure to collaborate early in cases regarding e-discovery issues, such as what data sources are subject to discovery, ESI search terms, and production specifications. E-discovery is an active process; sitting on the sidelines will not suffice.