Conner & Winters LLP partner Vicki Bronson remembers a time when the evidence discovery process was simpler for civil litigation. Official documents consisted of physical pieces of paper, of which there might only be a handful of copies, kept in manila folders, file cabinets and cardboard boxes. Personal and professional conversations generally were held face to face or on the phone, unless they were traceable through mailed letters or faxed memos.
Then, the digital revolution happened and everything changed.
“E-discovery [electronic discovery] now plays a major role in many cases,” Bronson said.
Now, official information often takes on an intangible, transient form via digital files stored on hard drives, flash drives, memory cards, CDs, websites, online drop boxes and cloud storage.
Interactions between people are often verifiable through email exchanges, text messages, instant messages, voicemails and social media posts, and all of this data potentially could become evidence in court cases, as could app use, vehicle black box information, metadata and GPS history.
In 2006, the Federal Rules for Civil Procedure were amended to include electronically stored information (ESI) in discovery, but left many points of e-discovery procedure up to judges’ discretion. Throughout the years, e-discovery has presented many challenges, leaving the law struggling to keep up.
For example, pertinent information can be buried among droves of data, a lot of which is irrelevant, duplicative or potentially privileged.
Bronson, who out of her Fayetteville office works primarily with corporate clients, says e-discovery has made the discovery process more time-consuming and expensive than ever before, partly because litigators often must subcontract information-technology specialists to access the information and also because of the man hours spent on reviewing what often proves to be monumental amounts of data.
“Take for example even a simple email,” Bronson said. “If you hit ‘reply all’ on a conversation with two other people, for each response you have several copies of a message on each individual’s email account.
“I work mainly with businesses. That means you have however many employees, who all have phones, laptops, tablets, any of which can contain necessary information,” she said.
Given the fact that a 2014 report from market research firm Radicati shows the average employee sends 36 work emails and receives 75 non-spam messages per day, it’s clear the data can add up.
If requested data is not provided, clients can face significant consequences, or sanctions. Parts of their case may be stricken, or the judge might instruct the jury to assume the worst — that the documents were destroyed on purpose, in bad faith.
And whether requesting or providing ESI, the information must be reviewed. Those providing the data will often want to review it to ensure no privileged or irrelevant information that could be damaging to their case makes it into the hands of the other side.
The biggest issue at this intersection of the legal and tech worlds? As Benjamin McCorkle, a partner at Beacon Legal Group PLLC in Little Rock, puts it, “The information starts out in the hands of people who don’t understand tech and ends up in the hands of someone who doesn’t understand the law.”
As a result, an entire industry has emerged around e-discovery help.
Some large law firms have document-scanning software and/or in-house experts to handle e-discovery, but even they need outside help at times, and many smaller firms routinely outsource e-discovery services.
One such service provider is Modus eDiscovery Inc.
The Washington, D.C.-based company opened a location in Fayetteville in 2006. Since the beginning, it provided a gamut of legal discovery aid, said general manager Michael Henderson. However, in 2013 Modus merged with another company, taking on its current name and placing a greater focus on e-discovery specifically, in the spirit of changing with the times.
Henderson’s team assists law firms and corporations — he estimates about 100 clients throughout Northwest Arkansas — in all aspects of the e-discovery process.
The branch has four employees, but works daily in tandem with about 200 employees in eight other locations throughout the country, according to the Modus website.
New Federal Rules
For someone like McCorkle, the knowledge gap has never been a problem.
He has a background in software development and his firm specializes in Internet law or, as he calls it, “nerd law.”
But McCorkle, like many other attorneys, has had to deal with inconsistency in the handling of e-discovery, an issue that proposed changes to the Federal Rules of Civil Procedure are intended to address.
Barring congressional action, these new rules will go into effect for federal court cases on Dec. 1.
One motivation behind the proposed rules is a paring down of the amount of data that can be asked for in e-discovery.
Overreach in an e-discovery request can be equivalent to “a fishing expedition,” McCorkle said. Putting it in perspective of physical evidence, he said, “It’s like having access to all the file drawers when all you need is one file.”
The new rules would provide a more comprehensive definition of ESI; they would put into place what McCorkle called a “sneak-a-peek rule,” allowing a party to request a random sampling from a data collection, in order to prove or disprove its relevance to a case before it is handed over; and they would require proof of intent before enforcing sanctions on those who cannot provide digital data because, for example, they have been deleted in keeping with a company’s document retention policies.
In addition, the new rules give more specific guidelines for the proportionality of the cost of producing data to the amount being asked for in the lawsuit.
All of these points must be discussed in pre-discovery conferences, where the parties will lay out what they are asking for and who will pay for it.
To Stephen Dacus, a partner at Kutak Rock LLP in Fayetteville, this is a key aspect of the new rules. “Encouragement to have an early, frank discussion on e-discovery is a good step,” he said.
Dacus said the changes are in line with his current practices, mostly, but that solidified guidelines should prove beneficial.
“The rules will help set clients’ minds at ease and let them know the right type of stuff to keep. I have clients who are scared to delete emails, a lot of which have no business purpose,” Dacus said. “The federal rules are moving in the right direction.”
Attorneys agree the amended rules are not the end-all, be-all for e-discovery practices.
“We don’t know what the next generation of communication is going to be. Technology is advancing faster than the law,” said Bruce Cross, director at employment and labor law firm Cross, Gunter, Witherspoon & Galchus P.C. in Little Rock. “Law is moving at the pace that it does and technology is not waiting. We could be making rules that are irrelevant later on.”
However, regardless of any new technologies, a general rule attorneys give their clients will likely not change any time soon.
Jess Sweere, director of CGWG’s Springdale office, said he tells clients to seek legal advice on the front end and deal with issues before they arrive.
This involves being aware of the rules, creating an organizational system that makes documents easy to locate, and implementing a document retention plan to put in place official timelines for deleting emails and other digital files.
Bronson said she agrees with this strategy and added that clients also should take the precaution to place litigation holds on documents from the time they are aware that a lawsuit might be imminent, and not wait until the lawyers make initial contact.
Bronson believes the new federal procedure will be beneficial throughout the e-discovery process.
“The new rules should make our jobs a little easier and take some cost from the plaintiff,” she said.
The federal rules, however, directly affect only cases held in federal court. Separate laws are put in place in individual states.
In Arkansas, the e-discovery procedure guidelines are based on federal rules from 2006 and are optional.
Dacus, for one, believes the optional approach works. Some cases — albeit fewer and fewer — do not require e-discovery at all, he said, and the magnitude of the role it plays in any given case varies widely.
For Bronson, who only argues about 25 percent of her cases in federal court, the case-by-case basis in state court typically is adequate.
“Working in Northwest Arkansas, I usually deal with the same lawyers, and we are usually able to work something out,” she said.
However, it is likely some elements of the new rules will have a trickle-down effect on state cases.
Bronson said judges often refer to federal rulings, and also that state rules, in most respects, follow federal rules, just generally a few years behind. And she said that would not be a bad thing in this case.
McCorkle agrees. “This way, everyone has the same rule book,” he said, “and there’s an amount of certainty. As lawyers, we hate when things are not certain and we don’t know the rules.”