I Before E? Not Anymore: Fifth Letter Gains Status
February 15, 2007
I used to work for a partner whose secretary's name was Enes. I sometimes pronounced it with an "A" and she got mad at me. Anyhow, he called her E. All day long, for about three years, I heard him shout out of his office: "E, what day is that hearing?" "E, was that motion filed?" "E, what time is it?" "E, do I have to go to the bathroom?" "E ... E ... E ... ."
Then he left. So did E. I thought I was done with it.
I'm not. E is back -- and in front. Of every word.
Congratulations are in order, actually. When it comes to daily usage by attorneys, E is the first letter in history to pass up I.
E-mail -- that one is harmless. You want to use it, fine. If not, ignore it. E-discovery, that's a different situation.
And now we have new e-rules. For many veteran practitioners, when they hear e-rules that apply to e-discovery, they think A-associate.
On Dec. 1, 2006, the amendments to the Federal Rules on Electronically Stored Information (ESI) took effect. The amendments basically guide us on how discovery applies to all that information our client has on computers or the electronic gadgets of the day.
We know what to do when our clients have ESI that is responsive to discovery requests, accessible, and not privileged. Turn it over. But what happens when the client has deleted information or can't readily find what once may have been electronically stored?
Enter Amended Rule 26(b)(2).
A party "need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost." The Committee Comments state that this amendment is designed to address issues raised by difficulties in locating, retrieving, and providing discovery of ESI.
Perish the thought of trying to conceive of clever ways to make information "difficult to locate and retrieve."
The Comments state that upon identifying what you can find, a party must also identify, "by category and type," the sources for ESI that you are neither searching nor producing.
You must provide enough detail so that the party propounding the discovery can evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources. Well, that's clear as mud, thank you.
Think of all the places responsive information could potentially be: desktop computers, disks, removable data storage media, laptops, home PCs, handhelds, corporate network servers, Internet service providers, archived locations, and with third parties.
Properly responding could be daunting. Add to this the fact that the burden to preserve evidence is not lifted by declaring ESI inaccessible. That should pretty much scare the hell out of everyone.
Plus, information systems are generally designed and programmed to delete information. Are we on the hook for that?
No. New Rule 37(f), the "safe-harbor" provision, provides that, absent exceptional circumstances, the court will not impose sanctions for ESI lost as a result of the routine, good-faith operation of an electronic information system.
But, the Comments note that when there is pending or anticipated litigation, good faith may require a party to intervene, suspend normal features of the system, and implement a litigation hold.
Where this could be most important is with e-mails, those fast-paced, convenient, little case-killers. "Bob, just heard from Lou about the explosion this afternoon. Should we have put a warning on that product? -- Bill."
Once a party knows of people whose e-mails on a subject may be relevant to litigation, it would be wise to suggest an immediate litigation hold.
Proctor and Gamble once failed to preserve e-mails of five people identified as having relevant information on a claim. Proctor and Gamble Company v. Haugen 179 F.R.D. 622 (D. Utah 1998). When the $10,000 fine was assessed, the company had the privilege of enjoying two of its fine products, Pepto and Pampers.
Many attorneys are now advising and/or assisting clients with record retention policies and response plans for when e-discovery is requested. Reminders that any documents, especially e-mails, may be discoverable, could pay dividends.
Could make for interesting conversations. "You mean to tell me that after I paid all that money so I could get increased storage capacity, you now want me to have an auto-delete? And my legal bills are going up because computers are making it more complex?"
If we get much more E, the next letter could become the new leader.
