So you have a basic personal injury practice – auto and trucking cases, slip and fall, maybe some medical malpractice cases – certainly you don’t need to be concerned about electronic discovery, right?

Wrong. 

If you’re not getting the electronic evidence from defendants in many of your cases, you’re missing critical evidence that can make or break your chances of success.  Although some lawyers may fall into the trap of practicing cookie-cutter law, it is important that all lawyers step aside from traditional approaches, and see what evidence is available in electronic format that has not been available before.  Indeed, as businesses become increasingly “paperless,” there is often more critical information to discover in a defendant’s computer than there is in its filing cabinet.  By failing to get electronic discovery, you may be setting yourself up for malpractice.

Discovering electronic evidence is easier today than it has been in the past.  But is electronic information legally discoverable? As electronic evidence is really nothing more than the data that resides on our computers, such as word processing documents, e-mail, spreadsheets, and databases, there really should be nothing mysteriously prohibitive about obtaining computer images of the data.  Consider the broad language of Federal Rule of Civil Procedure 34, which allows production that would encompass most electronic media. As one court noted, “Today it is black‑letter law that computerized data is discoverable if relevant.”^[1] Although the rules allow parties to specify production format for e‑documents, the rules do not direct counsel to pick one production format over another. When a production format is not specified, a responding party should produce documents in the format in which the information is “ordinarily maintained” or in an electronically searchable form.

Why not just print out the data and avoid all the dispute?  There are many reasons you would want the data in its original form.  First, the practical answer of the volume of materials is paramount.  You can have an entire warehouse full of materials loaded on one hard-drive.  Second, material in its “native” format can be searched by keywords (more on text searching, below).  Third, data in its native form can be manipulated.  So, for example, if you have a table or chart in a database form, that data can be rearranged and analyzed in many different formats.  (If the defendant’s experts can manipulate the data that way, so should your experts).  Finally, there may be multiple versions of a document available, and not just the final version.  This may be important if changes have been made to a document that become critical in formulating a paper-trail.

Federal Rule 26(a)(1)(B) specifically requires the disclosure of "data compilations" (for example, electronic files, databases, and e‑mails) after a full investigation of the case. This imposes a duty on attorneys to identify all sources and locations of electronic data in their clients' possession.  In that context, what do you need to do to begin obtaining the defendant’s e-data?

Preservation Order

The first thing you need to consider is whether you need a preservation order to prevent the defendant from destroying back up tapes.  Almost all businesses back up electronic data regularly—even daily.  Back ups can be made on tapes, separate hard drives, and even at off-site facilities.  Often, the tapes are “recycled” as old newer information gets recorded over older information.  Depending on the preservation policy of the defendant, you may need to petition the court immediately upon filing suit to make sure that all data is retained and old data is not destroyed as new data is recorded on old tapes. 

You should write the defendant a letter advising that the defendant should not destroy or delete any data for any reason.  This evidence‑preservation letter is a common way to protect against the loss of electronic information. In such a letter, sent to the company or its counsel, you request that the opposing party not destroy or modify any documents, software, logs, e‑mail, and so forth that are currently on that company’s computers.  You further request that the company take affirmative steps to preserve evidence. The letter should specifically request that the company put its document‑retention policy—a euphemism for document‑destruction policy—on hold.  To do otherwise would be considered spoliation of evidence.

Learning Where To Look – The Information Technology Deposition and Beyond

In order to determine what the defendant’s e-preservation policy is, and to determine exactly what data exists in the first place, you should strongly consider deposing the defendant’s Management Information System (MIS) person right away.  You can do so through a 30(b)(6) deposition asking the defendant to produce a witness with knowledge about databases, information storage, information destruction, back-up systems, and the like.  If you have already had the court enter a preservation order, you can determine at the deposition whether the company has taken steps to implement the order.  If you learn that the order is being violated such that information has been or is continuing to be destroyed, immediate court intervention is required.

During this deposition, you not only need to determine what information is available, and how it is retained, but also how it is stored.  You should strongly consider consulting with a forensic computer expert to help you formulate the questions and areas of inquiry.

Some useful questions may start with identifying the back-up e-data management policies – were any in place?  What operating system is in use?  Has the program that stored the data changed?  Are there hard-copy print-outs of any of the data, if the defendant claims that the e-data is no longer available?  Are only the PCs on the system backed-up?  Often the “vice-president” of something-or-other, presented as a corporate designee to discuss data production, is often less knowledgeable about the system that the actual data-entry person.  Thus, it is important to identify who had access to the database systems in the ordinary course of business.  What about portable laptops?  Voice mail may also be stored, and PDAs (Palm platform type devices) may also have information.

Following the deposition, you should create specific interrogatories and request for productions strategically targeted and specifically crafted to get the information that you want.  Review these requests with your expert to ensure that your terminology is accurate.  A request for "all electronic data" will likely result in an objection based on burden or expense, and courts have been inconsistent on how deeply they will allow a discovering party to dig. Therefore, discovery requests must be specific and exhibit an understanding of how electronic data is created, stored, and destroyed.