Author: JOLT Page 48 of 50

Download PDF

Cite as: Conrad Jacoby, Jim Vint & Michael Simon, Databases Lie! Successfully Managing Structured Data, The Oft-Overlooked ESI, 19 RICH. J.L. & TECH 9 (2013), available at http://jolt.richmond.edu/v19i3/article9.pdf.

 

By Conrad Jacoby,* Jim Vint,** & Michael Simon***

 

[1]        Legal professionals regularly advise clients to ensure that the storage, retention, and accessibility of their Electronically-Stored Information (“ESI”) is in full compliance with all legal and regulatory requirements in the event this information becomes relevant in civil, criminal, or regulatory disputes.  However, what many practitioners may not realize is that the ESI that clients are required to produce for e-discovery includes both “unstructured” and “structured” data.  Searching and producing only one of these types of ESI may well not fully satisfy a client’s full discovery obligations.  Even worse, it might not present a full understanding of the factual issues in the matter and how to best prove them to the legal team.

 

I.  What Is “Structured Data?”

[2]        Most legal professionals are extremely familiar with “unstructured” or “loose” data, even if they do not necessarily know it by these terms.  Simply put, unstructured data refers to e-mail messages, word processing documents, spreadsheets, and presentations, among other things—in other words, human-readable information that is commonly sought as potentially relevant ESI in discovery.[1]  Structured data, on the other hand, refers to information residing in electronic repositories or silos, such as transactional and financial databases.[2]  Unlike unstructured data, which typically exists as static and self-contained files that are preserved, collected, processed, reviewed, authenticated, and admitted into evidence as stand alone documents, structured data exists as segments of information inside a larger system, one that is often quite complex and contains many parts.[3]  A database record, the closest analog that structured data has to a “document,” may not actually exist until a user performs some action through the database system to assemble a number of separate fields that could reside in many different parts of the system.  For this reason, information stored in a database cannot be placed into a standard e-discovery review system that has been optimized to view and categorize unstructured data.

[3]        The ESI stored in databases and other structured data repositories is every bit as relevant and discoverable as the loose files that are more commonly requested.  Federal Rule of Civil Procedure (“FRCP”) 34 is clear and unambiguous on this point:

Rule 34.  Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

(a) In General.  A party may serve on any other party a request within the scope of Rule 26(b):

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:

(A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form[.][4]

[4]        Unlike the discovery of unstructured data, for which a number of best practices have emerged, it has been difficult for the legal industry to develop best practices for the treatment of structured data in civil discovery due to the vast diversity of size, scope, and features found in different database systems.  The Sedona Conference^®, a non-partisan legal think-tank founded in 1997, formed a group in early 2009 to study the issues surrounding the discovery of structured data—culminating in the publication of The Sedona Conference^® Database Principles Addressing the Preservation and Production of Databases and Database Information in Civil Litigation (hereinafter the “Sedona Database Principles”) in April 2011.[5]  The Sedona Database Principles expand upon the original publication, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (hereinafter the “Sedona Principles”),[6] as they specifically apply to databases and set out six additional precepts that provide practical suggestions for simplifying the discovery of structured data and clarifying the obligations of both the requesting and producing parties.[7]  An overarching theme of the Sedona Database Principles is that better communication between parties, their legal advisors and agents, and information technology professionals will substantially improve the management of this type of specialized ESI in legal disputes.[8]  To that end, the Sedona Database Principles specifically reference many of the precepts of the Sedona Principles that address and encourage cooperation between the parties.[9]

 

II.  How Does Structured Data Become Relevant?

[5]        Databases frequently record historical transactions and information that is relevant in litigation and investigations.  One would certainly expect that enterprise-level systems like Oracle and SAP, not to mention financial and transactional systems, human resource tracking systems, data warehouses, and content management systems (“CRM”), would all contain structured data.  However, other commonly used systems, including Cloud-based “Software-As-A-Service” (“SaaS”) systems, also feature the same back-end structured data systems as more obvious “database” systems.  Thus, structured data has largely replaced loose documents for tracking information for these and other similar functions: accident/incident reporting systems, call center records and associated data analytics, world wide web servers, point of sale systems, and social media.

[6]        The cumulative volume of data in business-related structured data repositories is immense and is projected to grow at an estimated annual rate of nearly twenty percent.[10]  Perhaps even more important to e-discovery practitioners, a recent survey about the state of discovery in civil litigation has shown that e-mail, the central focus of e-discovery requests for over fifteen years, is no longer the leading requested item.[11]  Instead, database and application data are now more often requested.[12]

[7]        An increasing number of litigation disputes involving “high profile” companies have made demands upon litigants to review, disclose, and produce at least portions of their databases.  Several examples are explored below.

[8]        The plaintiffs in In re eBay Seller Antitrust Litigation, an antitrust class action, sought production of transactional data from defendant eBay.[13]  The court granted the motion in part and eBay objected, claiming that the information sought did not already exist in easily compiled form, requiring eBay “to spend hundreds of thousands of dollars to dedicate a highly specialized engineering resource for a period of more than six months to create new data
” solely for the matter.[14]  However, eBay’s own submissions in support of the objection contained three different estimates, ranging from a low of $179,000 to a high of $300,000.[15]  Moreover, eBay’s employee in charge of data warehouse development declared that the provided estimate could vary “by as much as five hundred percent.”[16]  The court first disposed of eBay’s argument that it could not be required to create anything new, finding that FRCP 34(a)(1)(A) supported the magistrate’s finding that the technical burden of creating the new material did not excuse production.[17]  In light of the hundreds of millions of dollars at stake in the action involving a defendant with billions of dollars in annual gross profits, and considering that the magistrate had already scaled back the scope of discovery, the court found no clear error in the magistrate’s determination that the potential costs and technical requirements were not unduly burdensome.[18]

[9]        In another case, a plaintiff injured by a sink that fell from a high storeroom shelf sought production of the database that the defendant, Lowe’s, used to record and track accident and injury claims.[19]  The trial court ordered Lowe’s to present a witness with knowledge and access to the system and to print out all requests for accidents occurring before the date of the plaintiff’s injury.[20]  Notably, Lowe’s objected that: (1) it had already produced a printout from the database of all falling merchandise claims for its stores within the state for the last five years; (2) the remaining portions of the database were not relevant; (3) the manner in which accident information was gathered and stored was a trade secret; (4) the purpose of the database was not for safety-related information; and (5) there was no way to restrict production of privileged or non-relevant information.[21]  The appellate court agreed with Lowe’s in part and limited the plaintiffs from accessing data without limitation as to time, place, or subject matter.[22]

[10]      In Procter & Gamble v. Haugen a plaintiff appealed from the dismissal of his Lanham Act and tortious interference claims which resulted in part from the court sanctioning it for failing to preserve relevant database information.[23]  Procter & Gamble (“P&G”) claimed that agents of a competitor spread false rumors that the company supported Satanism, using the profits from forty-three products to do so.[24]  P&G and its expert witnesses used the services of a third party vendor, Information Resources Incorporated (“IRI”), to track potential lost sales of the forty-three involved products.[25]  IRI used a database that gathered purchase information from retail stores into electronic market share databases.[26]  IRI’s databases stored data on a “rolling” basis so that data was kept only for a period of time before it was deleted from the system to make room for more data.[27]  Defendants requested production of all of the information that P&G used from the IRI databases and when P&G was unable to produce all of this information, the court found that P&G had spoliated the data and dismissed the matter as a sanction.[28]  On appeal, P&G focused on the fact that it was only a subscriber to the IRI database, did not own or control the system, and therefore could not have practicably provided the information to defendants.[29]  P&G could have provided direct access to the system to defendants, but this would not have covered all of the information they sought.[30]  P&G would have had to pay over thirty million dollars to obtain all of the information from IRI and even if it had, it would not have had sufficient storage capacity for the data.[31]  The court of appeals found that the district court had failed to address the fact that P&G did not “possess” the data and along with the defendants’ failure to prove prejudice, reversed the sanctions order.[32]

[11]      In another case involving a Lanham Act claim, a plaintiff sought discovery about the defendants’ sales of an alleged infringing product. [33]  One of those defendants, Wal-Mart, responded with 1,771 pages of Bates-stamped documents that represented a print-out of the tabular view of the raw data within its sales database.[34]  Plaintiff claimed that the printouts, with line item data arranged by columns and UPC codes, was “indecipherable” and thereby an insufficient response.[35]  The court was “convinced” that Wal-Mart’s burden in deriving the information from the database was “significantly less” than on the plaintiff since Wal-Mart controlled the system.[36]  For this reason, the court granted plaintiff’s motion to compel a more sufficient response from Wal-Mart.[37]

[12]      Finally, in an Americans with Disabilities Act claim, the Equal Employment Opportunity Commission (“EEOC”) sought to compel production of portions of the human resources database of a Supervalu and Jewel-Osco, major national food retailers.[38]  The EEOC originally sought broad production of information from the human resources database, but narrowed its requests after a meet and confer session to employee hiring, transfer, and termination records, along with job postings for the subject time period.[39]  The EEOC premised its request on the defendants’ own FRCP 30(b)(6) testimony that “this sort of analysis could be completed” and that defendants’ “types of database are designed for this sort of production at minimal expense.”[40]  Defendants first claimed that they did not have the particular database tool activated in their system to allow them to provide the information requested by the EEOC.[41]  Defendants then objected to the scope and burden of the request, claiming that the information would cover over 180 locations and 100,000 employees (when there were only 108 claimants) and that it would take their IT personnel over a week to write the code necessary to obtain the data.[42]  The court found that the EEOC had not established that the relevance or benefit of the information outweighed the burden and expense of producing it and thus denied the motion to compel.[43]

 

III.  Can a Party Wait to Deal with Structured Data until that Information Has Been Requested?

[13]      The information contained in databases can make the difference between winning and losing a case.  The Sedona Database Principles makes this statement as a matter of
plain fact: “Information contained in databases may be the best source for establishing certain facts in a legal dispute.  Information stored in this format also may be useful, if not essential, for analyses such as sorting, calculating, and linking to answer quantitative questions presented in a case.”[44]

[14]      It is a simple matter to move from the abstract language of the Sedona Database Principles to concrete situations.  Unstructured data, particularly e-mail, instant messages (“IM”), and typical “office” documents (i.e., Microsoft Word, Excel, and PowerPoint) provides evidence of the communication of activities—who knew what and when.  People will write e-mail and text messages to others concerning what they did.  Similarly, they will draft documents to memorialize actions that they have taken.  In contrast, the structured data in transactional and financial databases provides direct evidence of the action—how, how much, and how often.  The financial system will show that money was moved and the time and accounts involved.  A transactional application will record the supervisor’s approval of the money transfer.  Thus, the database systems provide a way to “follow the money” and recreate what happened, even if the communications record is incomplete or, in the case of fraud or shady dealing, deliberately obscured.  For this reason, some have called structured data “forgotten data”—“perhaps the single biggest missed opportunity for de
fense in e-discovery.”[45]

 

IV.  Planning for Discovery of Structured Data

[15]      Databases, especially major, enterprise, or department-level systems, are often highly complex and highly customized.  The discovery of structured data typically requires specific expertise with experience in deciphering data structures, relationships, and connections to other systems.  The Sedona Database Principles is filled with warnings about the need for expert assistance,[46] and it likens the act of trying to handle discovery requests involving structured data without such knowledge as “akin to seeing a thousand-piece jigsaw puzzle without an illustration that shows the final completed puzzle.”[47]

[16]      Seeking information stored in structured data repositories also requires more planning—and often more efforts at cooperation between the parties—than traditional e-discovery.  Parties that do not meet and confer before commencing structured data requests may well find that the court sends them back to square one.[48]  Many reasons exist for this heightened need for additional proactive planning and discussion, but none may be more pressing than the fact that downstream production requirements will control the early stage EDRM work conducted in Preservation, Collection, and Processing, and even potentially as far back as the critical Identification phase of e-discovery.

[17]      It should come as no surprise that the Sedona Database Principles places particular emphasis on one of the core principles from the original Sedona Principles:

Sedona Principle 3: The Early “Meet and Confer”

“Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.”

Sedona Principle 3 is especially applicable in the context of database discovery because of the complicated technical and logistical questions raised by the storage of information in databases.  Database discovery may entail some of the most expensive and complex discovery in a litigation matter, and meaningful conversations between the parties early in the litigation can substantially reduce confusion and waste of resources.[49]

[18]      Challenges to the discovery of information stored in structured data repositories can occur from both opposing parties and litigants.  Many of the solutions for best using data from databases require the creation of a new view or analysis that differs from the way that the information is used in the ordinary course of business.  Responding to structured data requests is likely to require new reports, new extracts directly from the systems, or even entirely new systems to analyze data.  Attorneys are often not comfortable with this process, especially since information about how these new views of structured data were created may have to be disclosed to the other side if challenges arise as to the adequacy of the proffered discovery response.  Thus, it is critical to complete a full and frank discussion, between all stakeholders—each side and each role (Legal, IT, outside expert)—that clearly sets out all expectations before any work begins.

[19]      The first issue that practitioners are likely to confront during the e-discovery process involves the specific elements that will be extracted from the database.  In some situations, it may be necessary to preserve and collect elements that would not normally be considered “content,” such as reports, formulas, pick lists, reports, queries, and the like.[50]  For example, FLSA class action litigation often revolves around issues of how companies determined which employees were exempt from overtime and which were non-exempt; formulas within the HR and payroll systems applying these standards become critical.[51]  Fraud cases that center around who knew what and when could require the recreation of standard reports and views that were used at the time of the alleged suspicious activity.[52]  Such elements will almost certainly require rigorous preservation and collection methods, such as a complete database copy or a restored full back up, as outlined below.

[20]      In most cases, practitioners will need to focus solely on database content: the fields and records.  With this approach, legal teams must anticipate potential issues as they either use or produce this information.  Concerns include: (1) a need for completeness and usability of the data set; (2) availability of the data and technical feasibility of any planned search and retrieval Methods; and (3) cost.  Each concern is explored in turn below.

A.  A Need for Completeness and Usability of the Data Set

[21]      The fact that some of the data within a database may be relevant does not mean that the entire database must be produced.  Sedona Database Principle 1: Scope of Discovery clearly speaks to this point: “Absent a specific showing of need or relevance, a requesting party is entitled only to database fields that contain relevant information, not the entire database in which the information resides or the underlying database application or database engine.”[53]

[22]      Will legal teams require a complete set of data or merely an extensive subset of potentially relevant records?  For a small subset of data, a surgical approach will likely suffice.  However, if a complete dataset will be required for further analysis, the scope of database preservation, collection, and production will be much more extensive.  Date ranges for activity or database information creation may be helpful at this stage.

[23]      Does the team require a picture of the information present at a particular point in time?  If so, a snapshot of the data or the system will likely accomplish these objectives.  To create a historical record, a trend line, or to illustrate changes over time, more comprehensive preservation and collection will be required.

B.  Availability of the Data and Technical Feasibility of any Planned Search and Retrieval Methods

[24]      Structured data systems have a variety of capabilities and technical capacity.  Many of the older legacy systems can be very limited in how one can manipulate and export data.  Thus, before making any plans—or worse, commit to a regulator or the other side in litigation as to a methodology or deliverable data—it is critical to determine whether the target system includes the necessary capabilities.  The answer to this question will vary by the circumstances of each case, but some of the questions highlighted in Comment 2B of the Sedona Database Principles[54] provide a good starting point:

Can a user run searches within the system, other than those built specifically for the intended business uses of the database?[55]

Will the searches bring back complete information (i.e., all the requested data)?[56]

Is there information stored outside of  fielded tables?[57]

Does the producing party have custody and control of the database, such that it can access the “back end” of the system to export data, create custom reports, or otherwise access the system outside of normal business use?[58]

Does the system support third party tools that might be more efficient at querying the data?[59]

Does the system have reporting capabilities?[60]

Does the system support the creation of custom reports?

[25]      The answers to these and other questions will directly impact the extent to which a case team can preserve, collect, and ultimately produce the data stored w
ithin a database system.  It is crucial that qualified personnel correctly provide this essential foundational information.  It may be necessary to support such statements with documented expert evidence.  Given a lesser evidentiary showing, the courts have shown little sympathy for such claims, particularly when made by sophisticated corporations.[61]

C.  Cost

[26]      Structured data discovery has the potential to be more costly than “standard” requests.  It is imperative that parties have a strong understanding of the potential costs associated with structured data discovery.  Courts have become particularly sensitive over recent years to knee-jerk undue burden and cost claims under FRCP 26(b)(2)(B) that lack concrete documented support.[62]  This concern is yet one more reason why retaining experienced experts, who can attest to costs encountered in similar situations, may be critical to adequately educate both courts and requesting parties.

 

V.  Handling Structured Data within the EDRM

[27]      The Electronic Discovery Reference Model (“EDRM”) has come to provide an industry-accepted workflow for e-discovery across the litigation lifecycle.  Discovery of structured data can generally proceed within the EDRM framework, though a number of modifications may be required because of the unique requirements inherent in handling this type of ESI.  Virtually all structured data projects will require the application of an IT concept known as “ETL,” which is the acronym for Extract, Transform, and Load.  A good working definition for ETL is:

ETL is short for extract, transform, load, three database functions that are combined into one tool to pull data out of one database and place it into another database.  [Extract] is the process of reading data from a database.  [Transform] is the process of converting the extracted data from its previous form into the form it needs to be in so that it can be placed into another database.  Transformation occurs by using rules or lookup tables or by combining the data with other data.  [Load] is the process of writing the data into the target database.[63]

[28]      ETL is required in e-discovery for the simple reason that most business-oriented database systems (e.g., Peoplesoft, Cognos, Oracle Financials, specialized procurement software, and SQL databases) are designed to meet specific business needs and do not inherently “speak” to each other.  Hence, ETL permits different data formats to be assimilated or aggregated in a unified source for analysis.  This saves time querying multiple databases in various coding languages to try to quantify an impact, establishing relationships with the data across systems, and providing meaningful results to counsel and client.

[29]      For structured data, a typical workflow involves an ETL overlay of several EDRM phases, beginning with Identification and typically running through Preservation and Collection, and at times into the Processing phase.  This process is illustrated in the figure reproduced in the Appendix.

A.  Identification

[30]      The Identification phase for structured data is likely to require substantially more experience than it normally would for unstructured data systems.  Large-scale enterprise database systems, such as Oracle, SAP and PeopleSoft, are highly complicated and customized, requiring advisors with specialized expertise to understand them.  This complexity may even be considered a trade secret and thus protected by the software vendor.[64]  Even small-scale systems as simple as Microsoft Access databases are often customized and connected to other systems in ways that are both unexpected and poorly documented.  Older structured data repositories that fall into the categories of legacy data, obsolete hardware, and retired systems may present particular concerns since the documentation that existed at one time may no longer be available or accurate.  Further, the employees who created and maintained these systems may be long gone from the company, having taken with them any institutional knowledge about these systems.

[31]      For all of the above reasons, Sedona Principle 6: Responsibilities of Responding Parties is particularly applicable to and significant for the discovery of structured data.  Sedona Principle 6 reads: “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”[65]  The Sedona Database Principles further apply this guidance to the discovery of structured data in Database Principle 2: Accessibility and Proportionality, which states: “Due to the differences in the way that information is stored or programmed into a database, not all information in a database may be equally accessible, and a party’s request for such information must be analyzed for relevance and proportionality.”[66]

[32]      However, the fact that a producing party is generally better situated to evaluate methodologies and burdens does not mean that the responding party can and should examine and evaluate such information unilaterally.  In accord with the Sedona Database Principles’ focus on cooperation between the parties, Database Principle 3: Use of Test Queries and Pilot Projects recommends that the parties work together, starting with the sharing of database and system documentation or even going so far as to create test queries and pilot projects.  It states: “Requesting and responding parties should use empirical information, such as that generated from test queries and pilot projects, to ascertain the burden to produce information stored in databases and to reach consensus on the scope of discovery.”[67]

[33]      Key goals in the identification phase should include:

Determining which systems are likely to include data that might need to be used or produced;

Establishing the current status and availability of the data, such as whether it is still within live data systems, in legacy systems, in archives, on backup media, offline, legacy or retired systems;[68]

Locating the data, as many database systems have parts spread out among many physical locations, often in remote server farms or co-location facilities;[69]

Ascertaining who controls those systems (a vendor, such as SalesForce or other third party, rather than the client/litigant, may actually have possession and day-to-day control over the database itself);

Understanding the functional purpose of those systems, both for which they were created and potentially for any later purpose or purposes for which they may be currently used;[70]

Determining the capabilities and limitations of the current system or media holding the data—an important step that will set practical boundaries for how data can be preserved, collected and processed;

Assessing the costs and burdens of obtaining—and if necessary restoring—the data from its current storage repository; and

Evaluating the potential benefit of obtaining the data.

[34]      Data flow and entity relationship diagrams can be particularly useful in tracking down database connections, assuming the company has taken the time to create such documentation.  This documentation augments the more technical documentation involved with data mapping and a data dictionary or schema.  Data mapping, which is a list of how enterprise systems interconnect (sometimes prepared as a list, but sometimes created as an actual graphical map),[71] can make the difference between the success and failure of the project.  Structured data systems connect to other systems within
the enterprise, often to many systems and in surprising ways.  Missing those connections can mean missing necessary inputs, outputs, and related or relevant data.

[35]      A data dictionary or schema shows the type of data that is in a system, how it is organized and named, and the relationships between that data as it sits in fields and tables.[72]  Since structured data systems are often complicated and expensive, these tools tend to have long lives and may have changed purpose or focus over time.  As it can be burdensome to modify an underlying data table structure, newer data may be stored in repurposed fields or tables that may not be properly named or intended for the current use.  Such informal modifications are rarely fully documented unless a conscious (and recent) effort has been made to build a schema.  However, as underscored by Comment 1B of the Sedona Database Principles, data that could initially appear to be irrelevant may in fact be relevant because of its relationship and connection to other data fields.[73]  Thus, it is no surprise that the Sedona Database Principles propose that the responding party has a duty to provide the requestor with the information needed to convey a “basic understanding” of the database system.[74]

[36]      A final challenge in the identification phase is that the most common users of these structured data systems, the end-users or “customers” who query the substantive information stored in the database, are unlikely to be experienced IT professionals.  These users rarely have the time, knowledge, or ability to wade through technically confusing scenarios that a legal case team may pose.  A case team must take this into account and plan to interview a mix of end-users and database-knowledgeable IT professionals in order to build a reasonable understanding of a complex structured data repository in active use.

B.  Preservation and Collection

[37]      One of the most troubling aspects of e-discovery is that ESI has a tendency to disappear unless properly preserved.  Backup tapes get recycled, e-mail servers are purged of ex-employee accounts, and hard drives from the laptops of ex-employees are reformatted and reused.  Depending on the specific system at issue, some structured data repositories may be even worse in this regard.  While much unstructured data is lost due to human action, certain types of common structured data systems are specifically designed to eliminate or overwrite data regularly and automatically, without anyone’s direction or oversight.

[38]      These repositories stand in contrast to databases comprised of historical information, such as customer relationship management systems, complaint or incident databases, and financial systems used to determine trends, which are typically designed to log all inputted information.  In these systems, where one of their intended uses is long-term “data mining” for analytical purposes, the danger that information will disappear is appreciably less.

[39]      High volume transactional systems tend to overwrite data or regularly purge old data as the need for historical data is often limited and the volume of data that would build up over time would become prohibitively expensive to store.[75]  This problem is well known and the drafters of the 2006 FRCP Amendments who added the rules on ESI specifically noted that “many database programs automatically create, discard, or update information” and “that suspending or interrupting these features can be prohibitively expensive and burdensome.”[76]  Thus, practitioners assisting in a matter that touches these types of data systems will need to act quickly to preserve this type of system to avoid being left with incomplete data or none at all.[77]

[40]      Another unique wrinkle to the discovery of structured data is that the lines between the Preservation and Collection phases tend to blur.  For structured data, the information that is preserved is often exactly what is collected.  Most unstructured formats include potentially responsive files that are moved from at-risk locations (laptop hard drives, USB flash drives, unsecured network file stores, e-mail inboxes, etc.) to secure, locked down media or formats, pending further analysis.  In contrast, non-purging structured data typically needs to be collected from the underlying system to be preserved.  Thus, an already deadline-intensive e-discovery process can become more fraught with difficult-to-make and far-ranging early decisions.

[41]      It is important, however, to reemphasize that the fact that a database contains relevant information does not mean that the entire system must be locked down under a legal hold.  Sedona Conference Principle 5: Duty of Preservation places a practical limit on the expectations of the parties: “The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation.  However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.”[78]  Thus, parties can use a number of different methods to collect and preserve structured data; the choice will be driven not by the impossible expectation of perfection, but by the circumstances of the case and the project scope questions previously discussed in “Planning for Discovery of Structured Data.”[79]  Each of these collection methodologies has advantages and disadvantages.  Improperly applied, some methodologies have the potential to harm the information integrity of the underlying database and therefore, need to be used carefully or may need to be discussed more fully with the requesting party before moving forward.

1.  Forensic Collection of the Live Database

[42]      Some disputes may require preservation and production of a complete copy of the database system.  For example, this may be necessary where questions exist about the integrity or functionality of the database as a whole or if there is a need to manipulate the data in some way other than just as a historical record.

[43]      Collecting an entire database has some advantages, such as in situations where the complete dataset or evidence must be preserved.  This method presents the path of least resistance to key issues of data verification and authentication in that data can be verified through MD5 or SHA-1 hash codes to authenticate it as the basis for its admissibility as factual evidence.  Complete collection also presents the safest route against spoliation as any changes to a database in active service will not impact the version that was collected and is now out of tinkering hands.

[44]      That said, copying an entire structured data repository also has disadvantages when compared to other information collection methodologies.  The first disadvantage is cost.  Unless the system is small (e.g., desktop computer-based), the sheer size of a data repository may require large amounts of storage media, significant IT investment, and costly disruption to corporate operations.  In addition, accessing a collected data repository may require building a comparable hardware and software environment to load, search, and otherwise manipulate the data.  Enterprise-level infrastructure for this task is likely to be quite costly, even on a short-term leased basis.  For older legacy systems, it might not even be possible to copy the system and even if were possible, duplicating the computer systems on which the information resides might have long become unavailable.  Contractual rights may prevent this collection methodology.  In the case of databases accessed over “the Cloud,” copying the database as a whole is strictly forbidden both by license and deliberately-created technical constraints.[80]

[45]      It is im
portant to note that the preservation and collection of an entire database is rarely required for most legal disputes.  Most e-discovery requests involve only a subset of structured data.  Thus, collecting an entire database to preserve only a small amount of information within it incurs additional time and expense to search, cull, and select data, all of which will have to be done outside of the easy confines of an e-discovery review tool.

2.  Restoration of Backups from the Database

[46]      Similar in outcome, but potentially less burdensome, disaster recovery backups of a structured data repository may be used to preserve and collect databases.  Most organizations have regular business continuity backups of their key systems and it may be less onerous to divert one of these data snapshots than it would be to make a full copy of the live database.  However, the same disadvantages apply as making a copy of the system, along with some additional challenges that may make this potential methodology inappropriate in many situations.

[47]      Backup media may contain not just data regarding the database at issue, but also data from completely different systems as well.  Separating this information will require additional time and expense and may be complicated by data privacy requirements, such as HIPAA, that require the enactment of significant security measures for the removal of data.[81]  In addition to these costs, backup media must be restored, again requiring time, IT expertise, and suitable hardware to which the system image can be restored.[82]  Finally, backup systems are far from perfect and failure rates, while not as high as they have been even in the recent past, are still in the words of a highly-respected industry analyst, “not acceptable.”[83]

3.  Extracting Select Information from the Database

i.  All Fields/Data

[48]      A more selective and thus more efficient alternative to collecting an entire repository is extracting the substantive data from the system and exporting it into a generic data format that can be read by multiple databases.  The success of data collection using this methodology is relatively simple to test, using one of several established techniques.  In addition, if the extraction process is handled according to IT industry standard practices and properly documented, authentication should also be relatively straightforward.  Capturing a full set of the underlying data permits a case team to defer filtering and culling decisions to a later date, pushing back some expense until it is truly necessary.

[49]      Collecting database information through data extraction has some drawbacks.  As with other techniques that capture the entire data set, much of what is collected will be irrelevant and will need to be filtered out before any review or production.  This can be a lengthy, disruptive, and expensive process.  It is important to note that extracting the complete data set does not mean that all of the capabilities of the original database will be available.  Much of the value of many database systems stems from the computed values and analysis obtained by applying algorithms to source data.  Capturing raw data alone is often not adequate to collect this high-value relational information as well.[84]  The full extract, transform, and load process may be required to derive potentially critical information.

ii.  Selected Fields

[50]      Because databases typically track much more information than is relevant to a particular legal matter, it may be possible to extract select information stored within it.  Such selection can be applied along two axes: (1) limiting data extraction to a subset of database records and selecting them through an appropriate search query; and (2) limiting data extraction to only a subset of fields within a database record.  Often, both limitations are applied in the same export.  This approach has clear advantages in terms of cost, data volume, and amount of time required to complete the requested data extraction.  However, by the same token, leaving behind some of the validating information found in a database field may make the extracted information more difficult to authenticate.

[51]      Identifying and extracting the relevant data depends on three things: (1) knowledge of the system; (2) understanding of the matter; and (3) skill at creating queries.  Deficiencies in any one of these areas may complicate this effort.  In addition, because not all of the data in a database is collected using this methodology, there is some risk if the database has an information purging function built into it.  It may not be possible to fix mistakes if the initial selection criteria turn out to be incomplete.  Fortunately, when cooperation exists between all participants and parties in the process, this collection methodology can be both efficient and cost-effective for everyone.

iii.  Sample Fields (and Potentially Reiterations as Needed)

[52]      When the existence or non-existence of potentially relevant information is an open question, a final form of data extraction is to export sample database records.  The process can be repeated reiteratively, even incorporating suggestions from the requesting parties.  Properly conducted, this approach may permit a structured data repository to be dismissed as a source of potentially relevant information or it may hone the criteria required to identify and extract appropriate information.  Either way, approaching such an investigation cooperatively, rather than unilaterally, may enhance the defensibility of this approach.[85]

[53]      Selected sampling incorporates the risk factors that arise when extracting only select information from a database.  This approach adds a fourth potential failure point: the need for competence in generating appropriate sample sets and testing them for potential relevance.  Because of the highly selective nature of this approach, rigorous documentation is required to answer questions that may arise later as to the adequacy of how this methodology was applied.

4.  Reports

i.  Using Existing Reports

[54]      Existing (i.e., “canned”) database reports that are used for business purposes can be a useful first step for collecting structured data.  First, the total data volume will be much lower than other methods unless the reports are themselves massive.  However, as Comment 1F of the Sedona Database Principles highlights, even voluminous reports may still be appropriate to produce even with the inclusion of additional non-responsive information, as this could be the easiest, least expensive, and least burdensome way to obtain and produce the information so long as the producing party is not doing so for any improper purpose.[86]  Second, existing reports were created and generated for business purposes and thus have typically been “pre-validated.”  The accuracy of the information presented has been accepted as accurate and reliable as the basis for business decisions.[87]  This can greatly simplify post-production validation and authentication.  Third, these reports are typically minimally intrusive for an organization.  The report templates and underlying queries have already been created and used in the ordinary course of business so no custom workflow must be developed.  Fourth, especially with respect to Cloud-based/SaaS type proprietary systems, reports may be the only way to retrieve data from a system.

[55]      Unfortunately, the use of existing reports is not a perfect collection solution.  These reports were designed for specific business needs, not the needs specific to a legal dispute.  For this reason, existing reports rare
ly provide the information that is specifically requested.  They typically provide too much or too little.  A troubling problem, and one that is less well understood, is the fact that reports tend to not be “pure” output from the system.  Many database reports are compilations and aggregations of information that are more than raw information output from stored information.  Instead, this raw information may be added, reformatted, or otherwise “tweaked” from the pure source information in the database, sometimes to the point of showing significant deviation from source information.  For purposes of validation and authentication, this can create obvious problems.

[56]      Often, requesting parties do not automatically accept database reports in lieu of direct discovery of the source database.  In addition, it would be unwise to assume that the courts will side with the producing party over this issue without first examining the underlying facts leading to the creation of specific reports.[88]

ii.  Creating Customized Reports

[57]      Another option for data extraction from structured data repositories is to design a custom report.  Custom reports provide greater flexibility than existing reports due to their ability to be limited to relevant data, data fields, and time periods.  Custom reports also help to limit inadvertent disclosure of irrelevant data and can even be used on privileged, confidential, or protected personally identifiable information.

[58]      As a word of caution, not every system allows for the creation of custom reports, and even when this functionality is available, it may be difficult or expensive to use.  Custom reports may face a greater evidentiary hurdle than canned reports used in day-to-day business operations.  However, courts have been somewhat more sympathetic to production objections based on the undue burden of creating expensive custom database reports to comply with incoming discovery requests.[89]

5.  TIFF Image Snapshots

[59]      An older, and now less commonly accepted, way to produce structured data is to capture database output sent to the monitor or to reports and to render these “snapshots” to TIFF image.  This creates an easily preserved form that can be Bates-stamped and for which authenticity can easily be stipulated.[90]  While appropriate in some situations, this production method has fallen out of favor compared to other alternatives since it tends to reduce the fielded nature of the underlying data, thereby turning structured data into flat, inflexible unstructured documents that may or may not contain searchable text.  That being said, certain database systems have such limited data output capabilities that capture of data in this manner may be one of the only options currently available.

6.  Direct Access to the System

[60]      A final method for producing information from a database is to simply let the requesting party or its expert have direct access to that system to run its own queries or reports.  However, most litigants highly disfavor this method as it allows the opposing party potential access to privileged and confidential information within the database.  Courts that have addressed this situation have tended to be receptive to such concerns, requiring that limits be set.[91]  This direct access approach also has significant potential to disrupt in-house IT infrastructure and staff who are likely to be unhappy at opening a controlled organization’s asset to interlopers.  Indeed, the Committee Notes to the 2006 Amendments to FRCP 34 make it quite clear:

The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.  Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.[92]

[61]      In addition, granting outsiders access to data repositories containing certain personally identifiable information may violate data privacy laws and create significant (albeit unrelated) liability for the producing party.  For these reasons, direct access to databases and other such systems tends to be granted over objection “only in extraordinary circumstances.” [93]

[62]      No matter what process is used to preserve and collect a database, proper documentation and testing is critical as many of these processes are complicated and mistakes can occur.  Proper documentation and a record of testing will help to demonstrate good faith efforts if these procedures are later called into question.[94]

C.  ECA and Processing

[63]      Once the data has been extracted from its repository, it typically undergoes further transformation so that it can be used in the investigation or litigation context prior to attorneys’ review for substance.  For loose documents, litigants typically apply early case assessment techniques, such as key word or concept filtering, to reduce the data volume.[95]  Unfortunately, such techniques do not apply well to structured data, as this information is largely centered around transactions rather than words and phrases.  Properly processing and limiting the volume of such systems can instead profile the transactions using specific fields, dates, and general ledger codes.  A strong understanding of the system at hand becomes even more important in such situations.

[64]      Traditional culling methods may be more helpful when the extracted data includes free-form text entry fields such as “comment” fields.  Even here, though, because the unified extracted data exists as a single mass of (fielded) information, culling this glob of information can raise evidentiary challenges unless all changes are well documented and ideally, negotiated at least in principle with the requesting party.

D.  Review and Analysis

[65]      Once the data has been processed and preliminary analytics have been applied, it may still need to be reviewed for responsiveness and privilege.  Some structured data can be managed within standard review platforms, especially flat-file reports and data tables rendered as Microsoft Excel spreadsheets.  On the other hand, data extracted from enterprise-grade relational databases cannot be loaded into a review platform with any genuine hope of validly reviewing this information.  As described in the Sedona Database Principles:

Analyzing email messages and discrete electronic files typically involves a team (sometimes a large team) of reviewers and takes place through a document review platform.  Such review and analytical tools, however, are a poor fit for the matrices of information found in tables of extracted database information.  Instead, review of this information may require technically sophisticated analysts to query the data and extract the meaning of its aggregated information.[96]

[66]      A more straightforward approach to reviewing structured data looks not to the data’s abstract relevance, but instead to the significance of its data values.  Certain field information, such as protected private information, may be redacted or stripped, but this is the closest analogy to the parallel review process that takes place in a document review platform.  Otherwise, extracted data is manipulated, queried, and explored.  In addition, once protected and privileged data fields are removed from extracted structured data, no further attorney review of individual data fields is typically required.

[67]      When the content of individual data fields, such as notes or memo fields, require attorney review, the review par
adigm must be further adjusted.  Such a review is complicated by the fact that the information that requires review tends to be stored in a structured manner, but contains unstructured data, such as free text that lacks parameter constraints on length or format.  Technical specialists are typically enlisted to develop secure web-based database review tools that present this information in a reviewable format for redaction purposes.  Certain profiling and culling methods can be employed to reduce the overall volume of information that requires attorney review, but generally, some “eyes-on” attorney review will be required.

E.  Production

[68]      Extraction and Transformation processes largely set the production of structured data.  Information that has been shed as a by-product of transformation processes may now be non-replicable since many forms of extraction do not allow conversion back “upstream.”  You cannot, for example, extract data as reports and then reconstitute the data to produce it as a complete database.  Such is the reason that Sedona Database Principle 6: Form of Production reminds us that: “The way in which a requesting party intends to use database information is an important factor in determining an appropriate format of production.[97]  Comment 6A of the Sedona Database Principles takes this even further by underscoring that “it may be impossible for a responding party to take appropriate steps to provide database information in a reasonably useful format if it has no idea how the requesting party intends to use it.”[98]

[69]      Even if the parties do not avail themselves of the warnings of the Sedona Principles and the Sedona Database Principles and decline to work together to determine a reasonably usable production format, this lack of agreement does not mean that parties are free to produce data in any format they choose.  FRCP 34(b)(2)(E) requires:

(E) Producing the Documents or Electronically Stored Information.  Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.[99]

[70]      Courts have shown that they will be alert to production formats that are not usable.[100]  Courts can also order parties to produce data in particular formats even if it requires the creation of entirely new data sets.[101]  However, at the same time, the full cost of producing structured data does not always fall entirely on the producing party.  In some circumstances, a requesting party may be required to bear the burden and expense of some degree of transformation of the data from the producing party so long as the format of the production was in fact reasonable.[102]

[71]      The Sedona Principles echo the concerns of the courts in Principle 12: Form of Production and Metadata:

Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and needs of the case.[103]

[72]      Difficulties can arise when an opposing party requests that structured data be produced in “native format”—that is, the original file format in which producing party keeps the ESI.  Courts have sometimes shown an un-nuanced willingness to enforce general demands for native format production if it is properly and timely requested, or even if that is lacking, if good cause can be shown[104] or absent a showing of undue burden or hardship.[105]  At times, the courts have even required such native file productions from database systems.[106]  Many parties indirectly request this by requesting production of “the entire database.”[107]

[73]      Unfortunately, a “native file” production for structured data can present a number of difficult and unique problems.  First, and most obvious, the proprietary database format in which relevant data is stored may not be readable and thus, not “reasonably usable” to the requesting party.  Handing over to the other side a complete copy of a database system, particularly a world-class enterprise system, is also not a sufficient solution.  The recipient may well need to obtain a licensed copy of the system—a potentially very expensive proposition in the case of high-end database systems—or a near impossible proposition in the case of legacy or obsolete systems that are no longer commercially available (even as they remain protected by copyright and license restrictions from free copying).  Even if a license for the system can be obtained, installation of the system could take weeks or months and success is not always a given.[108]  Finally, even once such hurdles are successfully overcome, the very first use or view of a copied database system is likely to change the information therein, as such systems typically have tracking capabilities that are difficult or even impossible to turn off, making the copy no longer an accurate copy.[109]

[74]      For all of these reasons, more transformative production formats, which change the data from the way it is stored in the ordinary course of business, have become a commonly accepted discovery practice.[110]  In addition, a strong argument can be made that the fielded nature of the raw data, not the proprietary container in which it is stored, is the essential element that provides “native format” flexibility to this information.  If this argument is accepted, further transformation of the data may provide increased accessibility without compromising essential functionality.

 

VI.  Issues Beyond the EDRM

[75]      Because structured data does not fit squarely within an EDRM that was implicitly designed for unstructured data types, it should come as no surprise that additional issues often arise in working with structured data in discovery.

A.  Custody and Control

[76]      A respondent in discovery is only required to turn over what is in their possession, custody, and control.[111]  This obligation extends to traditional materials and ESI alike as well as to unstructured and structured data alike.  Complex databases, however, can challenge the issue of where data is stored and the extent to which it is “owned” by the content creator.  For example, a database may be housed entirely within a corporation and serviced by company IT professionals, so there would be no possession, custody, or control issue.  However, when the database is provided by a service provider, questions about information ownership can and do arise.  The licensing provisions for many Cloud-based SaaS providers hold that while information entered into the outsourced database may be the exclusive property of the database service client, many of the internal database elements that create relationships between this client provided data are proprietary to the point that a client does not have permission to view these
relationships, much less export them in response to a discovery request.[112]  As a consequence, the “owner” of information in these systems—the SaaS client—may not have custody or control over a portion of the ESI that it would have to provide if it hosted the database itself.

B.  Verifying that the Data Collected is Accurate

[77]      Structured data has the unusual property of appearing accurate and precise, even if the substantive information that the database reports is riddled with errors.  This issue can occur because the precision of a database search query or report is separate and distinct from the way in which the source data was created or entered into the system.  For example, operators at a call center may be asked to enter their recollections and remarks about customer questions and complaints.  This information is likely entered quickly as the operators focus on handling as many calls as possible during their shift and it may contain errors.  Yet, when this same information appears in a database report, it is likely to have the appearance of an accurate and truthful statement.

[78]      Sedona Database Principle 5: Data Integrity, Authenticity, and Admissibility considers this issue: “Verifying information that has been correctly exported from a larger database or repository is a separate analysis from establishing the accuracy, authenticity, or admissibility of the substantive information contained within the data.”[113]  Thus, in working with structured data, many practitioners have found it useful to separate these two competing questions about “accuracy.”  It is possible to validate the accuracy of a mechanical data export.  For example, certain reference fields or reference values can be exported with the substantive data and those values verified against the source information in the database itself.  Even something as simple as comparing the number of database records exported against the number of database records returned by a search query is a step in this direction.

[79]      Conversely, practitioners can reserve the right to further challenge the accuracy of the information contained within a structured data repository.  In evidentiary terms, the authenticity of the information—that is to say, the information was accurately exported from a database—can be the subject of a stipulation, but the truthful nature of the information remains subject to standard challenges as to hearsay and general reliability.[114]

C.  Validating Structured Data so that It Can Be Admissible as Substantive Evidence

[80]      Validating structured data is an important consideration when working with this form of ESI.  As noted previously, many practitioners are able to find common ground and negotiate a stipulation that ESI has been accurately exported or copied from the source database.  Authenticity can be mechanically established even though the exported form of the data is unlikely to be identical to the way that the structured data was maintained inside a larger database.  The Sedona Database Principles recognize and address this problem, in Principle 4: Validation: “A responding party must use reasonable measures to validate ESI collected from database systems to ensure completeness and accuracy of the data acquisition.”[115]

[81]      The larger issue, though, is finding a consistent workflow for establishing the reliability of structured data so that it may be admissible for the truth of the information contained therein.  Because structured data is typically exchanged in the form of data exports or reports, at least one court has found that the business record exception to the hearsay rule is inapplicable as grounds for admitting this information for the truth of the matter asserted.[116]  In the case of Vinhee, the court required a detailed showing of how information was entered into a database, including all efforts to identify and correct errors.[117]  The court further required additional foundation about how the underlying database was managed.[118]

[82]      A majority of other courts have imposed a less onerous set of requirements to admit extracted structured data for the truth of the matter concerned.[119]  A key point of argument remains the degree to which substantive information entered into a database has been validated as accurate near or at the time of its creation as structured data.  Systems that include such validation will have their information more easily ruled admissible than more open and less regulated databases.  In such cases, courts may begin to look at some of the Vinhee factors as additional extrinsic evidence required to lay a sufficient evidentiary foundation.

D.  Privacy

[83]      There are many types of database systems that contain vast amounts of private and personally-identifiable information (“PII”) such as HR systems, financial systems, healthcare systems, and customer transaction systems to name a few.  PII resides in some unexpected databases that most would not expect to contain confidential PII.  Web-logging systems, for example, capture unique IP addresses that could be used to track down the identity and location of users.  Such protected information will need to be identified and redacted prior to release of this data to a requesting party.  On the plus side, the same analytical measures that can assist with the extraction of the data can often also be used to locate and redact the confidential data, whether by removing it or replacing it with dummy data.  However, while such systems cannot always be perfect, many privacy laws are written with such perfection in mind so as to be rather unforgiving even as towards minor violations.  Thus, the parties are advised to carefully discuss putting into place protocols, potentially including protective orders, against the possibility of the inadvertent disclosure of PII.[120]

[84]      Unfortunately, that is not the end to the potential problems.  Because database systems tend to be distributed, portions of a system or systems to which it connects may well physically be located across jurisdictions, such as the European Union, that have strict privacy regulations.[121]  Other jurisdictions may not be concerned with the physical location of the data, but instead as to whether the data subjects—those whose information has been collected and stored—live within that jurisdiction.[122]  The penalties for violations of these laws and regulations can be severe, so careful legal consideration of the issues before taking action is well advised.[123]

 

VII.  Conclusion

[85]      Dealing with structured data in e-discovery is something that should neither be ignored nor treated lightly.  A case team may be required to handle structured data because an investigator, regulator or the opposing party requests it, or a case team may need to deal with it just to try to understand and prove its case.  Situations will arise where the proper expert use of structured data is the best or the only way “to follow the money” and figure out what actually happened.  When that situation arises, case teams are likely to need expert assistance to handle the myriad of issues both technical and legal, within the EDRM, and without.

 

Appendix

ETL As Applied to the EDRM Model

 

*Derived from the Electronic Discovery Reference Model v 2.0, which are used under See Creative Commons Attribution 3.0 United States License. | © 2005-2012 EDRM, LLC.

The Sedona Conference^® Database Principles Addressing the Preservation and Production of Databases and Database Information in Civil Litigation[124]

Principle 1: Scope of Discovery

Absent a specific showing of need or relevance, a requesting party is entitled only to database fields that contain relevant information, not the entire database in which the information resides or the underlying database application or database engine.

Principle 2: Accessibility and Proportionality

Due to the differences in the way that information is stored or programmed into a database, not all information in a database may be equally accessible, and a party’s request for such information must be analyzed for relevance and proportionality.

Principle 3: Use of Test Queries and Pilot Projects

Requesting and responding parties should use empirical information, such as that generated from test queries and pilot projects, to ascertain the burden to produce information stored in databases and to reach consensus on the scope of discovery.

Principle 4: Validation

A responding party must use reasonable measures to validate ESI collected from database systems to ensure completeness and accuracy of the data acquisition.

Principle 5: Data Integrity, Authenticity, and Admissibility

Verifying information that has been correctly exported from a larger database or repository is a separate analysis from establishing the accuracy, authenticity, or admissibility of the substantive information contained within the data.

Principle 6: Form of Production

The way in which a requesting party intends to use database information is an important factor in determining an appropriate format of production.

Download PDF

Cite as: Michael Yager, E-Discovery as Quantum Law: Clash of Cultures—What the Future Portends, 19 RICH. J.L. & TECH 10 (2013), available at http://jolt.richmond.edu/v19i3/article10.pdf.

 

By Michael Yager*

I.  Introduction

[1]        Early in the twentieth century, the phenomenon that is the “quantum”[1] stormed the fortress of classical physics, causing Albert Einstein, one of science’s greatest thinkers, to opine, “[i]t was as if the ground had been pulled out from under one, with no firm foundation to be seen anywhere, upon which one could have built.”[2]  The theoretical laws associated with looking at reality on the quantum level violently collided with those related to looking at the same reality on the macro level.  The application of quantum theory to the mathematically pure and proven classical laws of physics introduced a cultural clash in the world of theoretical physics, which caused many physicists to doubt their very sanity.  This Article argues that developments in the law related to the phenomenon of “e-discovery”[3] have been no less shattering to those practitioners in the classical practice of law than the introduction of quantum theory in physics.  The introduction of “electronically stored information” or “ESI” using the procedural rules designed to govern the classical practice of law created an identifiable shift in jurisprudence related to e-discovery.[4]  Indeed, the introduction of this category of discoverable information caused a cultural explosion within a segment of the legal profession not seen in any other profession since those great thinkers of physics nearly a century ago.

[2]        This Article provides an overview of the clash of cultures extant in the practice of e-discovery related law today along with an entertaining comparative perspective from the viewpoint of a similar clash that occurred in the physical sciences.  The author hopes that by understanding more fully some of the causes of practitioner angst in managing e-discovery obligations, along with a glimpse of what trends can be expected in the future, this phenomenon can be better confronted and managed.

 

II.  Discussion

[3]        Changes in the law are most often driven by reasoned debate over a period of some time and carefully, if not cautiously, embraced by the bench.  Drama is by and large a stranger to the doorstep of the law, except for those moments that attend some social or economic issue with political import, and for the most part is incompatible with the plodding evolution of jurisprudence.  With complete awareness of and respect for the reality comprising the beautifully crafted portrait of the law, which was accomplished over hundreds of years by the many practitioners and judges using the most considerate strokes of the brush, this Article introduces a moment of drama.

[4]        Cultural explosions come in many colors and stripes.  In Europe, the French Revolution comes to mind.  In America, the emergence of an anti-government, anti-authority culture reflected in unprecedented massive national demonstrations across the landscape during the Vietnam War comes to mind.  Few would argue that these two examples do not reflect the clash of cultures between two different worlds of values and beliefs.

[5]        In the classical practice of law, one would expect to find a more subtle representation of such a clash aside from the guillotine of the French Revolution or the Kent State tragedy that captured the culture clash of noble protectors of freedom and dirty hippies protesting without a permit.  While a single image may not express the violence that often accompanies socio-cultural explosions within a nation’s history, its representation of the clash of worldviews can be no less dramatic.  The graphic presented as part of the article “Sanctions for E-Discovery Violations: By the Numbers” published in the Duke Law Journal in 2010 is one such representation. [5]  This graphic, reproduced in the Appendix, shows the increase in the number of cases in which e-discovery related sanctions were sought.[6]  Like the recording instruments of the first experiments in the early days of quantum physics, the explosion documented by this graphic, although not representative of physical violence, paints a portrait of an earth-shattering cultural clash within the realms of classical law and quantum law.

 

III.  A Clash of Cultures

[6]        The classical culture and practice of law are best captured in the days before the FRCP and the 2006 Amendments brought ESI to life.  As with isolated early experimental results in quantum physics, there are instances where courts acted on discovery abuses relating to ESI before those now hallowed amendments found their way onto the pages of the FRCP.[7]  Just like the early theories and experiments in quantum physics, these decisions were mere drops of rain on a landscape that was soon to experience the torrent of a flash flood running beyond the banks of a reasoned river of e-discovery related jurisprudence.

[7]        In “classical law,” discovery was something most often managed down the road after litigators were convinced that a relatively swift resolution of the merits by settlement would not take place short of moving on to more serious stages of the litigation life cycle.  E-discovery was often viewed as one of the steps toward the more deliberate moments of litigation, carrying with it a classical gravity of a sort.  While the FRCP and many state rules before the advent of ESI spoke to the duty of evidence preservation, one is hard pressed to identify more than a handful of litigation hold letters or memoranda from an attorney to a client amongst the tens of thousands of cases litigated before the year 2000.[8]  As the Duke Law Journal graphic indicates, a culture clash surrounding discovery motions practice emerges with ESI and the development of jurisprudence related to discovery preservation and spoliation, the phenomenon of “quantum law.”[9]  The graphic, however, is telling in that with the introduction of ESI into the FRCP, there was a brilliant clash of cultures between classical law and quantum law.  History will determine whether quantum law finds its etiology in the bench, the bar, or a combination of the two, but something continues to drive it in ample measure in the present.

[8]        Indeed, while conducting e-discovery CLEs, references to the Duke Law Journal graphic are accompanied with a simple question: “Why?”[10]  Why, on this graphic of discovery motions practice is over a quarter of a century of relatively flat, nearly negligible bars followed by an explosion of sanctions in the last six to eight years?  If the FRCP were amended, for example, to change the number of days allowed for mailing a response to discovery, or for the filing of an answer to a complaint, would we witness similar widespread non-compliance by attorneys?

[9]        The clash of cultures related to the phenomenon of quantum law has not escaped notice.  As with the introduction of quantum theory in physics, jurisprudence related to e-discovery has slowly begun to spawn incredulous observations.  This incredulity of the present clash is well captured in some of the comments fr
om its historical counterpart in physics.  “The more I think about the physical portion of the Schrödinger theory, the more repulsive I find it,” Werner Heisenberg fulminated.[11]  Indeed, Schrödinger seemed to agree with him, exclaiming at one point that, “[i]f all this damned quantum jumping were really here to stay, I should be sorry I ever got involved with quantum theory.”[12]  Today, running on a course parallel to those esteemed scientists’ remarks, one can almost sense the same level of abject disbelief in the words of numerous court decisions resulting from the clash of cultures between classical law and quantum law.  One is particularly poignant:

Once again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to “meet and confer,” “cooperate” and generally make every effort to “communicate” as to the form in which ESI would be produced.  The quoted words are found in opinion after opinion and yet lawyers fail to take the necessary steps to fulfill their obligations to each other and to the court.[13]

[10]      Certain words in these decisions seem to reflect judicial rumination on the quantum law phenomenon and point to a biting and unflattering analysis.  “[L]awyers—even highly respected private lawyers . . . need to make greater efforts to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production.  Lawyers are all too ready to point the finger at the courts and the Rules . . . .”[14]  In the title of his article, “‘Do I Really Have To Do That?’ Rule 26(a)(1) Disclosures and Electronic Information,” United States Magistrate Judge David J. Waxse succinctly captured the attitude of practitioners of classical law who continue to be buffeted by the requirements and impact of ESI.[15]  So widespread is this crash of clashing of cultures that Judge Waxse observed that such disbelief “echo[ed] around the litigation world.”[16]  Practitioners are also taking notice.

[11]      Ralph Losey, an attorney who phased out his general trial practice to fully engage in the e-discovery world, “quickly noticed something [he] had not seen before in any other field of law. . . . case law is dominated by sanctions cases involving spoliation of evidence. . . . [and] attorneys are often directly implicated in this spoliation.”[17]  Losey expressed early wonderment at the world of quantum law, “wonder[ing] if [he] had stepped into a crazy zone of the law.”[18]  Brad Harris and Craig Ball—the former an expert practitioner and the latter an attorney and one of the foremost national experts on e-discovery law—suggest that “[t]he growing urgency of this matter . . . touched off a flurry of rulings in the area of legal holds in 2010, with several major court decisions redrawing the map in what had been virtual terra incognita.”[19]

[12]      In the laboratory of quantum law, the results of the “experiments” in the form of an exploding ESI-related motions practice and resulting sanctions were often so bizarre that practitioners of classical law simply refused to accept what was before them.  Up seems to become down and far away now seems too close to bear.  The world of classical law is askew as if stretching to the forces of some unseen black hole.[20]  Simple basic tenets of law steeped in tradition are becoming seemingly meaningless in the world of quantum law.  The bedrock principles of stare decisis and the influence of nonbinding precedence hold no sway in this clash of cultures.  Practitioners now hear that an e-discovery spoliation decision made by a judge in New York’s Southern District might bear on how they should manage discovery in their district in the Fourth or Ninth Circuit.[21]  Respected counsel from respected firms, albeit of the newly emerging practitioner class of quantum law, write things about a single decision by a single judge “promis[ing] to significantly affect the way e-discovery is practiced and litigated in the federal courts.”[22]  Classical law practitioners’ reactions are deep seated and visceral.

[13]      I recall a dear friend a well-seasoned litigator summoning me to a lunch one day shortly after the release of the FRCP 2006 Amendments and the resulting written and reported smatterings of happenings from the world of quantum law began to appear.[23]  My friend inquired: “Do you believe this is something here to stay or just the latest judicial fad?”  I opined that perhaps what we were seeing belonged to the former rather than the latter category, which was answered by a look of despondency. With a panic stricken countenance in stark dissonance to
the once confident and charismatic litigator I had known for many years, my friend exclaimed: “I don’t care what a federal judge tells me to do about this so-called e-discovery.  I am simply not going to do it.  They cannot make my client incur all of these ridiculous costs!”  This was a response that well reflects the anguish that the simple term “ESI” introduced to the world of classical law.  Many classical practitioners felt, for the first time in perhaps storied careers, that the legal landscape over which they had exercised such command and control assumed a foreign and threatening shape.  Their refusal to acknowledge and accept what was fast becoming a new force in litigation to be reckoned with, I suggest, contributed to the phenomenon so well captured by the Duke Law Journal graphic.  It certainly did not escape notice of the editors of the Federal Judicial Center, who noted in the preface to Managing Discovery of Electronic Information: A Pocket Guide for Judges that:

This second edition of the pocket guide on the discovery of electronically stored information (ESI) follows the first—and the related 2006 amendments to the Federal Rules—by more than five years.  These intervening years have seen an explosion of civil case law on ESI.[24]

[14]      While there is room for debate as to the etiology behind this explosion and the reasons behind such wholesale resistance of one culture to another, there can be little doubt that regardless of what we can, tongue in cheek, term the “uncertainty principle”[25] as to a precise description of the cause of the phenomenon before us, before us it is.  Before us, it remains.

[15]      Notwithstanding some observations that suggest even a hint of reconciliation between classical law and quantum law, such reconciliation remains much sought after.  Its elusiveness caused Magistrate Judge John M. Facciola of the United States District Court of the District of Columbia to opine that, “[w]hen the dust settles 10 years from now and the scholars sit down cooperation will be seen as the most significant development from e-discovery.”[26]  Obviously, Judge Facciola believes that cooperation among counsel will resolve the effects that the clash of cultures caused and restore some sense of balance to what has been a tumultuous world of litigation since the advent of ESI.  This sentiment echoes a law firm blog entry a few years ago entitled “Sanctions Down; Cooperation Up; Preservation, Privacy and Social Media Remain Challenging.”[27]  In this blog entry, the authors draw a silver lining around a drop in the number of requests for sanctions in 2010 as compared with 2009, believing it “reflects greater adeptness by litigants and counsel in e-discovery practice and broader acceptance of cooperation and openness in the e-discovery process.”[28]  The statistics, however, carry with them that seemingly contradictory component typified by the clash of theories in classical and quantum physics.  Any hint of resolution or cooperation between the classical and quantum worlds always seems to leave a statistical “outlier”[29] that defies ultimate peace between the two different approaches of looking at th
e same world.[30]

[16]      While noting the drop, albeit slight, in requests for sanctions and the corresponding sanction decisions, a statistical anomaly that challenges what seems to be on the surface some promising data confronts the authors of the blog on the theme of cooperation increasing in e-discovery.[31]  “Although requests for sanctions decreased, motions to compel more than doubled in 2010, being filed in 43% of all e-discovery cases as opposed to 20% in 2009.”[32]  Like their counterparts in theoretical physics grappling with a bothersome experimental result to a hoped for theory, the blog authors suggest an explanation consistent with the proposed model of cooperation.[33]  To paraphrase, court intervention was sought on only a small number of e-discovery issues in which counsel could not agree with the intimation because this occurred after much cooperation.[34]

[17]      But to some observers, these “laboratory results” from the world of quantum law which indicate a doubling in motions to compel in 2010 with motions filed in “43% of all e-discovery cases” may not be as accommodating or optimistic. [35]  Indeed, it is a difficult argument to make that the spirit of cooperation between counsel, the suggested cause of the decreased number of sanctions, is more strongly attached to attorney behavior than perhaps a growing judicial discretion at the bench in meting them out. [36]  It would seem that the same spirit of cooperation which led to a fewer number of requests for sanctions might be expected to play out at the motions practice level, which is driven solely by attorneys.  It might be a stretch to attribute the doubling in the number of motions to compel in e-discovery cases to counsel who were doing their best to cooperate but got hung up on the narrow technicalities of an e-discovery agreement, otherwise known as a “gosh, we all just missed that” moment.  Filing a motion to compel was simply their last resort.  The data suggest otherwise.[37]

[18]      To attribute a significant learning curve in the ranks of counsel to a decrease in the number of sanctions requested and sanctions ordered would be an understandable rush to judgment in the hope of some promising sign that the tide of the cultural clash is beginning to recede.  One might similarly be impressed by the Equal Employment Opportunity Commission (“EEOC”) Performance and Accountability Report for the 2012 fiscal year, which indicates that the federal government is filing fewer lawsuits against companies.[38]  One could infer from this statistic alone that companies are learning how to better comply with the EEOC requirements for establishing non-discriminatory work environments.  As with the 2010 decrease in the number of e-discovery sanctions, there is an outlier to the decreasing number of lawsuits filed by the EEOC.  “[T]he number of systemic discrimination investigations has increased four-fold.”[39]  At the recent Georgetown Law Advanced E-Discovery Institute annual conference held in November 2012, one observer noted that frustration among the bench with lack of attorney cooperation continues:

Collectively, the group [of Judges] expressed frustration that lawyers were not taking the lead in EDD disputes, and thus, in essence, forcing the judges—rather than the parties themselves—to determine protocols and strategies.  The judges pushed several dominant themes: the need for lawyers to take the “meet and confer” obligations seriously; to educate themselves on technology options; and to be reasonable and realistic about e-discovery protocols . . . .[40]

[19]      This hardly sounds like growing sophistication and cooperation in the world of quantum law.  Rather, it is as if the clash of cultures is still in its infancy, reflecting the reality captured a few years ago in a Federal Judicial Center survey, that “only one in three respondents reported that their 26(f) conference to plan discovery included a discussion of ESI.  More than half of all respondents reported that the conference did not include discussion of ESI.”[41]

 

IV.  What the Future Portends

[20]      In discussing alternative explanations for the conflicting e-discovery data referenced above, it is possible in some measure to argue what the immediate future portends with regard to the practice of the e-discovery component of law and the continuing clash of cultures.  The following loom on the horizon:

A.  A Continuing Increase in E-Discovery Motions Practice 

[21]      A growing number of attorneys, particularly at larger firms or with more sophisticated practices, are becoming increasingly adept at the practice of e-discovery and learning how to better comply with court expectations.  Various federal circuits have initiated programs or local rules which, for the first time, set forth standardized expectations required of counsel.  This had led to an appearance of greater cooperation.  The Suggested Protocol for Discovery of Electronically Stored Information in the U.S. District Court, District of Maryland, and the Seventh Circuit’s Electronic Discovery Pilot Program are two such examples.[42]  More attorneys are attempting to comply with local rules and procedures with regard to e-discovery simply because some now exist where before there were none.

[22]      Litigation practitioners are putting to good use the resulting learning curve among attorneys indexed to increased participation in the e-discovery agreements required by local rules.  But far from meaningful cooperation in resolving e-discovery issues, the doubling of motions practice from 2009 to 2010 and from 2011 to 2012 speaks volumes about what is really occurring.[43]  Practitioners are becoming increasingly skilled and savvy in attempting to leverage the e-discovery advantage to tip the scales in their clients’ favor.[44]  It is much more likely that the doubling of motions to compel reflects this reality of the litigation process.[45]  As participants in an adversarial process, litigators realize that they are advocating on behalf of their client and were not retained to enter the calmer waters of mediation practice.  The future will carry this trend forward as more practitioners become aware that many federal and state courts will impose sanctions against adversaries vulnerable to the dynamic ESI legal environment.  Moreover, the trending of an increase in the imposition of sanctions will result in growing attempts by counsel to leverage this potential tactical advantage in the courtroom.[46]

B.  Double-Dip Inflation in E-Discovery Practice 

[23]      While the American economy is haunted by the threat of double dipping back into a recessionary spiral, e-discovery practice is poised to experience the opposite economic effect.  Indeed, e-discovery is poised to double-dip back into the inflationary spiral that the first clash of quantum law caused, which is a clash that saw the early and memorable monolithic sanctions dispensed in such cases as Qualcomm and Zubulake.[47]  Many of the largest law firms and major e-discovery vendors cut their teeth on these magnificently large and complex cases.  This was the playing field of much of the early e-discovery law.  The practitioners involved in these types of cases are those that experienced the greatest knowledge building within the often-intimidating world of law associated with e-discovery practice.

[24]      As quantum law has made itself known as a practice, there is a growing awareness on the part of many counsel in how to leverage what can be termed the patterns of exposure characterizing e-discovery law.  “Patterns of exposure” have to do with the breadth and depth of e-discovery law on a variety of issues.  As an example, the law relating to the issuance of written litigation finds a hom
e in many federal circuits and thus the pattern of exposure in litigation practice in any circuit is enormous.  Whereas, more specific and narrowly detailed opinions such as Phillip M. Adams & Associates, L.L.C. v. Winbond Electronics Corp., in which the court stated that one of the parties should have anticipated litigation based on other lawsuits happening in the industry, cannot be said to have created a significant exposure footprint; despite being bothersome, the exposure pattern is more slight.[48]

[25]      Newly enlightened practitioners in the art of e-discovery leveraging will see to it that the attendant motions practice and sanctions that confronted early practitioners will bleed down to the small or medium practices and cases.[49]

C.  Growth of the Pool of E-Discovery Victims 

[26]      As the bleed down phenomenon of e-discovery cases runs more quickly from the mountains of large firms and practices to the surrounding hills of the smaller litigation landscape, the borders of e-discovery motions practice will expand beyond those large firms and large cases to include many more victims.  The pool of law firms confronting the exponentially growing world of ESI and its permeation into every corner of litigation of every conceivable size is growing.[50]  Indeed, for every law firm that is developing an acute awareness of the nuances of e-discovery law and of the expertise, both legal and practical, with which to navigate these arguably treacherous waters, there are others that have not.  This is a victim pool.  During the introduction of quantum theories, the scientific method required that the same phenomenon tested in a different laboratory setting must yield the same results.  Results that were incompatible with classical physics eventually overwhelmed it.  Similarly, the early cycle of quantum law will find new life and live again with the growth of the e-discovery victim pool, foreshadowing a growing motions practice and number of associated sanctions with this expanding pool of smaller firms and cases.

D.  An Eventual Flattening of the E-Discovery Motions Practice and Sanctions 

[27]      The relatively recent pushback against rising e-discovery costs by companies of all sizes is a pushback against and a modifying force to the clash of quantum law.  As with the downstream effect of growing e-discovery motions practice, this pushback will reach the newer practitioners who attempt to leverage this power as well.  This reality will be more responsible for cooperation among counsel than the hope that litigators reach some mythic plateau of altruism as noble officers of the court.  Also, as the next cycle of e-discovery practice bleeds down to a larger “victim pool” and runs its course, it should result in a certain equilibrium among practitioners who will know how to better manage the patterns of exposure attendant to ESI and the resulting portrait in jurisprudence related to e-discovery. 

 

V.  Conclusion 

[28]      Rather than doubting intuition, practitioners should heed the lessons of the introduction of quantum physics while observing the changing landscape in e-discovery that results from the clash of cultures between classical law and quantum law.  It may be comforting to classical practitioners that although quantum physics has yet to find a permanent home within the world of its classical counterpart, both now work side by side in what is seen as a quest of mutual interest of explaining the physical universe.  Each acknowledges the other’s legitimate role in the total picture and many of the early conflicts have been resolved.  In time, quantum law will reach equilibrium with classical law and e-discovery practices will become as predictable and acceptable as the filing of a motion in limine or a motion for summary judgment.

Appendix: Figure 1

[51]

---

Download PDF

Cite as: Justin P. Murphy & Adrian Fontecilla, Social Media Evidence in Government Investigations and Criminal Proceedings: A Frontier of New Legal Issues, 19 RICH. J.L. & TECH 11 (2013), available at http://jolt.richmond.edu/v19i3/article11.pdf.

 

By Justin P. Murphy and Adrian Fontecilla*

I.  Introduction

[1]        As the newest pillar of communication in today’s society, social media is revolutionizing how the world does business, discovers and shares news, and instantly engages with friends and family.  Not surprisingly, because social media factors into the majority of cases in some respect, this exploding medium significantly affects government investigations and criminal litigation.  Social media evidence includes, among other things, photographs, status updates, a person’s location at a certain time, and direct communications to or from a defendant’s social media account.  This Article will examine the importance of social media in government investigations and criminal litigation, including access to and use of social media evidence, constitutional issues that social media evidence raises, the authentication and admissibility of such evidence, in addition to the impact of social media on jurors.

 

II.  The Importance of Social Media

[2]        Social media use is widespread.  Ninety-one percent of today’s online adults use social media regularly, which has become the number one activity on the web.[1]  “People continue to spend more time on social networks than any other category of [web]sites,” accounting for “20% of their time spent on PCs and 30% of their mobile [use] time.”[2]  Social media use in the United States alone has increased by 356% since 2006.[3]  52% of Americans now have at least one social media profile,[4] more than one billion people use Facebook actively each month,[5] and 32% of all Internet users are now using Twitter.[6]  Notably, some of the largest growth in the last year has been among forty-five to fifty-four year old Americans, 55% of whom now have a profile on a social networking site.[7]

[3]        There are hundreds of social networking websites with each catering to a different demographic and providing a different type of content.[8]  Moreover, their users are constantly creating massive amounts of data.  “Twitter users send [one] billion tweets every two and a half days,”[9] Instagram users upload forty million images every day,[10] Facebook users share 684,478 pieces of content every minute, and YouTube users upload forty-eight hours of new video every minute.[11]  Social media users create more than just photos, videos, and tweets.  They share other information, such as their location as well.  “As of 2012, [seventeen] billion location-tagged posts and check-ins were logged.”[12]  The myriad and continually changing ways to share information via social media has resulted in a digital goldmine of potential evidence, such as profiles, lists of friends, group memberships, messages, chat logs, tweets, photos, videos, tags, GPS locations, likes, check-ins, and login timetables.[13]

[4]        The information that social media providers make available is staggering.  When a phone company responds to a government subpoena or search warrant, it may provide call or message logs.  In contrast, when a social media company like Facebook responds to a government subpoena, it could provide the user’s profile, wall posts, photos that the user uploaded, photos in which the user was tagged, a comprehensive list of the user’s friends with their Facebook IDs, and a long table of login and IP data.[14]  In addition, with the advent of location-based services that social media companies like Facebook, Twitter, and FourSquare offer, precise location information will be increasingly maintained in the ordinary course of business and subject to the same subpoenas and search warrants.[15]  One newsworthy example demonstrating the amount of information available to law enforcement from a simple photograph is that of John McAfee, the antivirus company founder who was recently on the run from law enforcement authorities investigating the murder of his neighbor.  McAfee was forced out of hiding when it was found that a photo of him published on a blog was embedded with GPS metadata pinpointing his exact location in Guatemala.[16]  Not surprisingly, each social media request can yield admissions or incriminating photos in addition to other evidence.[17]

 

III.  Accessing Publicly Available Social Media Evidence

[5]        It is no secret that government agencies mine social networking websites for evidence.  Even without having to seek a warrant from the court or issue a subpoena, there are troves of social media evidence publicly available.[18]  For example, the New York Police Department has a social media unit that mines Facebook, Twitter, and other social media sites for evidence of crimes and potential criminal activity.[19]  Moreover, a majority of government agencies are active participants who contribute content and solicit information through social media.[20]  Given the amount of information publicly available and the avenues that the government has to seek out such information, usually the government does not need a search warrant, subpoena, or court order to obtain social media evidence.

[6]        There are countless cases involving defendants who are arrested because of information, photos, or admissions posted to social media sites.  For example, a defendant in Kentucky was jailed after he posted a photo of himself siphoning gas from a police car onto Facebook.[21]  Another defendant broke into a Washington, D.C. home to steal a coat, a laptop, and cash, subsequently using the victim’s laptop to post a picture of himself wearing the stolen coat and holding up the stolen cash to the victim’s Facebook page.[22]  The photo was used later to secure a guilty plea from the defendant.[23]  While some sites allow users to control what content the public can access, many users do not make use of such tools.  In fact, twenty five percent of Facebook users do not use any type of privacy controls.[24]

[7]        In addition to searching for publicly available evidence, government agents are allowed to go further than defense counsel in pursuing social media evidence for a criminal proceeding.  To bypass the need for a search warrant, government agents may pierce the privacy settings of a person’s social media account by creating fake online identities or by securing cooperating witnesses to grant them access to information.[25]  For example, in United States v. Meregildo, the defendant adjusted the privacy settings on his Facebook account so that only his Facebook “friends” could view his postings.[26]  The government obtained the incriminating evidence against the defendant through a cooperating witness who happened to be Facebook “friends” with the defendant.[27]  The defendant moved to suppress the evidence seized from his Facebook account, arguing that the government had violated his Fourth Amendment rights.[28]  The court found:

Where Facebook privacy settings allow viewership of postings by “friends,” the Go
vernment may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment. . . . While [the defendant] undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private.  And the wider his circle of “friends,” the more likely [the defendant’s] posts would be viewed by someone he never expected to see them.  [The Defendant’s] legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted—including sharing it with the Government.[29]

[8]        Recently, federal authorities relied heavily on social media to build their case against four defendants who were allegedly involved in an Al Qaeda inspired terrorist cell based in California.[30]  The criminal complaint, which included a section titled “Defendants’ Social Media,” provides a glimpse into the various ways that law enforcement uses social media in its investigations.[31]  The investigators used an “online covert employee” who posed as a terrorism sympathizer to elicit damaging statements from the defendants, recorded Skype conversations between a confidential informant and the defendants, and relied on the social media content that each defendant “liked,” “shared,” or on which the defendant commented.[32]

[9]        The Securities and Exchange Commission also recently issued a Wells Notice for the first time based on a social media communication.[33]  On December 5, 2012, Netflix disclosed that it had received a Wells Notice from the SEC Enforcement Staff for allegedly violating public disclosure rules when its CEO, Reed Hastings, posted onto his Facebook with more than 200,000 followers that, “Netflix monthly viewing exceeded one billion hours for the first time ever in June [2012].”[34]  After receiving the notice, Hastings noted in a letter to shareholders that, “[W]e think posting to over 200,000 people is very public, especially because many of my subscribers are reporters and bloggers;” nevertheless, the SEC has provided no formal guidance concerning the use of social media, Regulation FD, and communications with the investing public. [35]

 

IV.  Social Media Companies, Subpoenas, and Warrants

[10]      Given the digital goldmine of potential evidence available from social media companies, it is not surprising that they are increasingly targeted in search warrants and government subpoenas in criminal matters.  For example, Twitter “received more government requests” for user information in the “first half of 2012 . . . than in the entirety of 2011.”[36]  In addition, approximately 80% of those requests were from authorities in the United States.[37]  Google, which operates social networking sites including YouTube and Google+, continues to receive subpoenas and search warrants in criminal matters at a rapidly accelerating pace.  Statistics published by Google, which “primarily cover requests in criminal matters,”[38] show that the number of Google user data requests received from government authorities in the United States more than doubled from 2009 to 2012 and that the United States accounts for over 39% of user data requests received from government authorities around the world.[39]

[11]      Moreover, the prevalence of social media evidence in criminal proceedings will continue to proliferate as government agencies continue to formally train their personnel to search for and collect social media evidence.  A recent survey of over 1,200 federal, state, and local law enforcement professionals reveals that social media is widely used to assist in investigations, few learned how to use social media for investigations through formal training, and “74% of those not currently using it . . . intend to start using it.”[40]  Moreover, the case law is already replete with instances in which the government obtained social media evidence through a warrant or subpoena directed at a social media company.[41]  Social media evidence is the new frontier of criminal proceedings and it raises unique legal challenges, including issues of admissibility and a defendant’s constitutional rights in material that social media companies maintain.

 

V.  Accounting for the Stored Communications Act

[12]      Federal law provides that in some circumstances, the government may compel social media companies to produce social media evidence without a warrant.  The Stored Communications Act (“SCA”) governs the ability of governmental entities to compel service providers, such as Twitter and Facebook, to produce content (e.g., posts and tweets) and non-content customer records (e.g., name and address) in certain circumstances.[42]  Passed in 1986, the SCA has not been amended to reflect society’s heavy use of new technologies and electronic services, such as social media, which have evolved since the SCA’s original enactment.[43]  Consequently, courts will continue to play a critical role in defining how and whether the SCA applies to the varying features of different social media services by applying precedent from older technologies, such as text messaging pager services or electronic bulletin boards.[44]

[13]      The SCA provides that non-content records can be compelled through a warrant or court order.[45]  With regard to the compelled disclosure of communication content, the SCA provides different levels of statutory privacy protection depending on how long the content has been in electronic storage.[46]  The government may obtain content that has been in electronic storage for 180 days or less “only pursuant to a warrant.”[47]  “The government has three options for obtaining communications . . . that have been in electronic storage with an electronic service provider for more than 180 days: (1) obtain a warrant; (2) use an administrative subpoena; or (3) obtain a court order under § 2703(d).”[48]

[14]      At least one Circuit Court of Appeals has called into question the constitutionality of the SCA.[49]  In United States v. Warshak, the Sixth Circuit held that “the government agents violated the Fourth Amendment when they obtained the contents of [defendant’s] e-mails” without a warrant and added that, “to the extent that the SCA purports to permit the government to obtain such e-mails warrantlessly, the SCA is unconstitutional.”[50]  The court reasoned that “[o]ver the last decade, e-mail has become ‘so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[] for self-expression, even self-identification’” and that therefore, “e-mail requires strong protection under the Fourth Amendment.”[51]  Noting that e-mail was analogous to a phone call or letter and that the internet service provider was the intermediary who made e-mail communication possible, the functional equivalent of a post office or telephone company, the court concluded that given “the fundamental similarities between e-mail and traditional forms of communication, it would defy common sense to afford e-mails lesser Fourth Amendment protection.”[52]  However, Congress made clear that changing the law will require extended consideration when, on December 24, 2012, the Senate removed from proposed legislation an amendment to the SCA that would have prevented authorities from viewing a person’s e-mail messages without obtaining a warrant.[53]  In the meantime, courts will play a key role in clarifying how the SCA applies not only to e-mails, but also to the social media that has rapidly become as pervasive and important to people as e-mail.

 

VI.  Defining a Defendant’s Constitutional Rights Regarding Social Media Evidence

[15]      Courts have also star
ted grappling with novel issues relating to the constitutionality of the government’s use of information obtained from social media companies in criminal proceedings.[54]  For example, a New York appellate court will soon issue an opinion regarding Twitter’s appeal of two court orders in the prosecution of an Occupy Wall Street protestor in People v. Harris.[55]  The trial court held that the defendant lacked standing to move to quash the government’s third-party subpoena to Twitter for his account records and that the Fourth Amendment did not protect his tweets.[56]  The trial court similarly denied Twitter’s motion to quash the government’s subpoenas for the defendant’s Twitter records for the same reasons.[57]  Although Twitter’s appeal is pending, Twitter turned over the data after the trial judge threatened the company with civil contempt and fines, which led to the defendant’s guilty plea in December 2012.[58]

[16]      Notably, the defendant was only able to move to quash the subpoena because “Twitter’s policy is to notify users of requests for their information prior to disclosure,”[59] a policy which is becoming more common among social media companies.[60]  Not only does Twitter notify its users that the company has received a government-issued information request for the user’s data, but it also protects its business by litigating against such third-party government subpoenas.[61]

[17]      On appeal, Twitter argued that the defendant has standing to quash the government’s subpoena because he has a proprietary interest in his tweets, pointing to the express language of Twitter’s Terms of Service.[62]  Moreover, Twitter claimed that the Fourth Amendment protects the defendant’s tweets, primarily because the government concedes that the defendant did not make public the tweets that it sought.[63]  If a defendant has a reasonable expectation of privacy under the Fourth Amendment in his or her non-public e-mails,[64] refusing to afford that same protection to users’ non-public tweets would create “arbitrary line drawing.”[65]  Finally, even assuming that the tweets in question were public, Twitter argued that the government still requires a search warrant under the federal and New York constitutions.[66]  Notwithstanding Twitter’s pending appeal, Twitter complied with a court order requiring it to promptly submit the defendant’s tweets under seal.[67]

[18]      The line-drawing concerns that Twitter expressed in its People v. Harris brief, that a defendant’s reasonable expectation of privacy under the Fourth Amendment in his or her social media records depends on the privacy settings for the particular account in question, were implicated in United States v. Meregildo, a case in which the court held that “[w]here Facebook privacy settings allow viewership of postings by ‘friends,’ the Government may access them through a cooperating witness who is a ‘friend’ without violating the Fourth Amendment.”[68]

[19]      Some courts have concluded that individuals have “a reasonable expectation of privacy to [their] private Facebook information and messages.”[69]  Those courts, while recognizing the importance of properly understanding how Facebook works, distinguished between “private messaging” and posts to a user’s Facebook wall.[70]  Using privacy setting distinctions to determine social media users’ constitutional rights may result in arbitrary line drawing that might evaporate as social media evolves.  Indeed, with Facebook’s customizable and post-specific privacy settings, a person who shares a message by posting it on another user’s wall can actually make it as private as information shared via a Facebook message.[71]

[20]      In addition, it remains uncertain whether, given the sheer breadth of information available in any particular social media account, one can successfully challenge search warrants for entire social media accounts for lacking sufficient limits or boundaries that would enable the government-authorized reviewing agent to ascertain which information the agent is authorized to review.[72]  Ultimately, because an expectation of privacy under the Fourth Amendment is partly a function of whether “society [is] willing to recognize that expectation as reasonable,” social media’s rapid proliferation through today’s society may influence the privacy protections afforded to social media evidence in the future.[73]

 

VII.  Defending a Criminal Case with Social Media Evidence

[21]      Defendants face more significant obstacles than the government when seeking exculpatory evidence from social media companies.[74]  First, defendants and their counsel do not share the government’s freedom to sleuth for publicly available social media evidence, although counsel should have free access to anything his or her client produced or can access.[75]  Ethics opinions issued to lawyers in various states have established that a defendant’s lawyer may not “friend” or direct a third person to “friend” another party or witness in litigation in order to search for impeachment material or exculpatory evidence.[76]

[22]      Second, defendants face additional hurdles when seeking to issue a third party subpoena.[77]  Defendants may seek to subpoena social media companies for user information regarding the victim, the complaining witness, or another witness.[78]  In those instances, in federal criminal proceedings, defendants must pursue such non-party discovery pursuant to Federal Rule of Criminal Procedure 17 and seek a court order allowing such a subpoena.[79]  Among other hurdles in seeking such an order, the court may find that the evidence maintained by a social media website is “private,” in which case the SCA prohibits a non-governmental entity, such as Facebook and MySpace, from disclosing that information without the consent of the owner of the account or a government order.[80]  In one high profile example of a defendant clearing such hurdles, on October 19, 2012, the court presiding over the Trayvon Martin murder trial granted the defendant’s motion seeking permission to subpoena Facebook and Twitter for the records of Trayvon Martin’s social media accounts in addition to Mr. Martin’s girlfriend’s Twitter account.[81]  Notwithstanding the order, Facebook and Twitter may challenge the subpoenas as Twitter so did in People v. Harris.

[23]      Despite these challenges, criminal defendants may attempt to use novel methods of obtaining exculpatory social media evidence.  For example, under Brady v. Maryland or Giglio v. United States, one may obtain a law enforcement officer’s social media account records.[82]  Moreover, courts may order jurors, witnesses, or third parties to produce or manipulate their social media information in unique and unprecedented ways.  For example, courts have: (1) ordered a juror to “execute a consent form sufficient to satisfy the exception” in the SCA to allow Facebook to produce the juror’s wall posts to defense counsel;[83] (2) ordered a party to briefly change his Facebook profile to include a prior photograph so that his Facebook pages could be printed as they existed at a prior time;[84] (3) recommended that an individual “friend” the judge on Facebook in order to facilitate an in camera review of Facebook photos and comments;[85] and (4) ordered parties to exchange social media account user names and passwords.[86]  Such novel avenues of access to social media evidence may be considered when the defendant subpoenas a social media provider for certain records of a witness or victim and the social media company objects to the subpoena pursuant to the SCA or is unable to produce the evidence as it previously existed.

 

VIII.  Admissibility of Social Media Evidence

[24]      Social media is subject to the same rules of evid
ence as paper documents or other electronically stored information, but the unique nature of social media as well as the ease with which it can be manipulated or falsified creates hurdles to admissibility not faced with other evidence.[87]  The challenges surrounding social media evidence demand that one consider admissibility when social media is preserved, collected, and produced.  It is important for counsel to memorialize each step of the collection and production process in addition to considering how counsel will authenticate a tweet, Facebook posting, or photograph.  Methods of authentication include presenting a witness with personal knowledge of the information (they wrote it, they received it, or they copied it), searching the computer itself to see if it was used to post or create the information, or attempting to obtain the information in question from the actual social media company that maintained the information the ordinary course of their business.

[25]      Notably, these same challenges face the government who must also consider the admissibility of social media when they conduct their investigation.  In United States v. Stirling, the government seized the defendant’s computer pursuant to a search warrant and provided the defendant with a forensic copy of the hard drive.[88]  The government also performed a forensic examination of the hard drive and extracted 214 pages of Skype chats downloaded from the defendant’s computer, which were not “readily available by opening the folders appearing on the hard drive,” but did not provide this information to the defense until the morning of its expert’s testimony near the end of trial.[89]  The logs “had a devastating impact” on the defendant because they contradicted many of his statements made during his testimony and he was convicted.[90]  In a short but stinging opinion ordering a new trial, the court found:

[If a defendant] needs to hire a computer forensics expert and obtain a program to retrieve information not apparent by reading what appears in a disk or hard drive, then such a defendant should so be informed by the Government, which knows of the existence of the non-apparent information.  In such instance, and without the information or advice to search metadata or apply additional programs to the disk or hard drive, production has not been made in a reasonably usable form.  Rather, it has been made in a manner that disguises what is available, and what the Government knows it has in its arsenal of evidence that it intends to use at trial.[91]

[26]      While both government and defense attorneys continue to grapple with addressing and authenticating social media sources of evidence, courts largely seem to be erring on the side of admissibility and leaving any concerns about the evidence itself, such as who authored the evidence or whether the evidence is legitimate, to jurors to decide what weight to give that evidence.  For example, courts have ruled social media evidence as admissible where the content of the evidence contains sufficient indicia that it is the authentic creation of the purported user.[92]  In Tienda v. State, the appellant was convicted of murder based in part on evidence that the prosecutors obtained after subpoenaing MySpace. [93]  Specifically, “the State was permitted to admit into evidence the names and account information associated with [the defendant’s MySpace.com profiles], photos posted on the profiles, comments and instant messages linked to the accounts, and two music links posted to the profile pages.”[94]  The Court of Criminal Appeals affirmed the trial judge’s decision and concluded that the MySpace profile exhibits used at trial were admissible because they were a sufficient “indicia of authenticity” that “the exhibits were what they purported to be—MySpace pages for which the appellant was responsible for” the content.[95]

[27]      In another recent case, a defendant was convicted of aggravated assault following a domestic dispute with his girlfriend.[96]  At trial, the prosecution introduced Facebook messages sent from the defendant’s account in which he indicated that he regretted striking his girlfriend and asked for her forgiveness.[97]  The defendant denied sending the Facebook messages and argued that both he and his girlfriend had access to each other’s Facebook accounts.[98]  On appeal, the court, acknowledging that “electronic communications are susceptible to fabrication and manipulation,” affirmed the trial court’s ruling that allowed the state to authenticate the messages through circumstantial evidence, most notably that they were sent from the defendant’s account and that the girlfriend testified that she did not send the messages.[99]  In another instance, a federal court found that photographs of a defendant from his MySpace page, which depicted him holding cash, were relevant in his criminal trial for possession of firearms and drugs, but it withheld ruling on the admissibility of the photos and whether they presented a risk of unfair prejudice.[100]

[28]      Given the proliferation of social media, the increasing sophistication of technology, and the potential challenges relating to the reliability or authentication of social media, the authentication and admissibility of such evidence will likely continue to be the subject of vigorous disputes between parties that may mean the difference between ultimate guilt and innocence.

 

IX.  Juries and Social Media

[29]      Admissibility is just one challenge that the Internet and social media pose at trial.  Another difficult issue relates to what information may be gathered about prospective jurors.  At least one bar association has determined that attorneys may use social media websites to conduct juror research as long as no communication occurs between the lawyer and the juror as a result of the research.[101]  However, attorneys may not research jurors if that research results in the juror receiving a communication.[102]  Third parties working for the benefit of or on behalf of an attorney must comport with the same restrictions as that attorney and, similarly to other ethical restrictions on defense counsel’s ability to use social media as an investigative tool discussed supra, an attorney cannot use deception to gain access to a juror’s website or to obtain information.[103]

[30]      One of the most recent and challenging social media trends relates to jurors using wireless communication devices to look up a defendant’s criminal record, conduct their own investigation into a case, post their opinions about the case on social media websites, or attempt to “friend” parties, lawyers, witnesses, or judges.  In some instances, this conduct has resulted in mistrials and overturned convictions.[104]  In other instances, such conduct has caused courts to conduct lengthy hearings to determine the impact of the juror’s actions.  For example, in Sluss v. Commonwealth, a defendant appealed his murder, assault, and evidence tampering convictions on the grounds that two members of the jury, including one who served as the jury foreperson, failed to indicate during voir dire that they had each “friended” the victim’s mother through Facebook.[105]  The Supreme Court of Kentucky, noting that being a “friend” on Facebook was not enough by itself to prove bias for disqualification as those “friendships” may be superficial, reversed and remanded the case with instructions to hold a hearing on whether the jurors should have been struck from the jury panel on the basis of their alleged social networking activity.[106]  Finally, the inappropriate use of social media has led to stiff penalties for both jurors and attorneys.[107]

[31]      Both legislatures and courts have attempted to respond to these trends.  For example, California adopted a new statute clarifying that jurors may not use social media and the Internet, such a
s texting, Twitter, Facebook, and Internet searches, to research or disseminate information about cases, and they can be held in criminal or civil contempt for violating these restrictions.[108]  On August 21, 2012, a Judicial Conference Committee announced that it had created an updated model set of jury instructions to help judges discourage jurors from conducting research or communicating about their cases through social media.[109]  The model instructions state:

I know that many of you use cell phones, Blackberries, the Internet and other tools of technology. . . . You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube.  You may not use any similar technology of social media, even if I have not specifically mentioned it here.[110]

[32]      The chair of the Conference Committee who provided the updated rules stressed that:

The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate.  Jurors should be told why refraining from use of social media promotes a fair trial.  Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time.  Those recommendations are now part of the guidelines.[111]

 

X.  Conclusion

[33]      Social media evidence is undeniably a critical new frontier of government investigations and criminal proceedings.  Social media has rapidly become so pervasive that while users are creating warehouses of data every day and social media companies roll out new communication features, courts, government agencies, practitioners, and the social media companies themselves are struggling to understand how this information fits into existing legal paradigms of constitutional protections, the SCA, and rules of evidence.  Despite this uncertainty, one thing is clear.  The government has a deep and largely one-sided set of tools for seeking out and obtaining social media evidence that plays an ever-increasing critical role in their investigations and litigation.

---

Download PDF

 Cite as: Thomas Y. Allman, Local Rules, Standing Orders, and Model Protocols: Where the Rubber Meets the (E-Discovery) Road, 19 RICH. J. L. & TECH 8 (2013), available at http://jolt.richmond.edu/v19i3/article8.pdf.

By Thomas Y. Allman*

[District Courts], impatient with the failure of the national system to solve pressing, indeed urgent, procedural problems, utilize local rules in an effort to shape pragmatic solutions . . . . [as] one route to procedural change.[1]

 

I.  Introduction

[1]        In late 2012, the U.S. District Courts for the Western District of Washington,[2] the Northern District of California,[3] and the District of Oregon[4] all announced, in close proximity with one another, local initiatives that deal with e-Discovery issues that the 2006 E-Discovery Federal Rules Amendments (the “2006 Amendments” or the “Amendments”) largely ignored.  These proposals are part of a second wave of local rulemaking, which is more focused on pragmatic solutions than earlier efforts.

[2]        A large number of federal districts have undertaken local initiatives to deal with e-Discovery.[5]  Some merely make passing reference to e-Discovery in local rules while others explicitly describe topics deemed worthy of attention or mandate specific measures to resolve open e-discovery issues.  However, many districts have yet to make such special accommodations.

[3]        Less visible but equally important efforts have been made to accommodate e-Discovery by amendments to standard forms.  For example, there are now many useful forms available for Rule 26(f) reports and discovery plans, as well as for joint or individualized proffers of scheduling orders or case management orders.

[4]        Section II of this Article describes the legal context for local initiatives.[6]  Section III explores the types of local responses to the 2006 Amendments.[7]  In Section IV, the efficacy of key components emerging from the variety of approaches described is evaluated.  The author concludes that concerns over a lack of procedural uniformity among the districts are largely overblown and that some initiatives serve as welcome harbingers of national rulemaking.  The author also expresses concerns about over-reaching in some of the measures studied.

 

II.  The Legal Context

[5]        This Article turns first to the general description of rulemaking at the local level, focusing first on the statutory and rule-based framework.

A.  Local Rules

[6]        The authority to enact local rules flows from 28 U.S.C. § 2071 and Rule 83 of the Federal Rules of Civil Procedure.  A local rule “must be consistent with—but not duplicate—federal statutes and rules adopted under 28 U.S.C. §§ 2072 and 2075.”[8]  Local rules typically “supplement the applicable Federal Rules”[9] and have the force of law.[10]  The mere fact that a federal rule is not fully comprehensive, such when the rule is “silent” on a topic, does not bar otherwise permissible local initiatives.[11]

[7]        Unless a majority of the district judges approve the local rules after “giving appropriate public notice and an opportunity for comment,” they are ineffective.[12]  Districts must use Local Rules Advisory Committees to assist in developing suggestions for and reviewing potential changes in the rules.[13]  The rules are available on district websites and in legal research databases.[14]  Numbering must conform to a uniform national system based on the Federal Rules.[15]  In Hollingsworth v. Perry, the Supreme Court confirmed that local rules enacted without meeting these procedural requirements risk invalidity.[16]

[8]        Not all districts rely on extensive local rules.[17]  Some also use “Administrative,” “Standing,” or “General” orders, typically to provide administrative detail.[18]  In most districts, they are also available on the district website.[19]  When used to provide procedural mandates, however, they are subject to the same consistency requirements as local rules.[20]  In 2009, the Standing Committee issued helpful guidelines on the topic.[21]

B.  Individual Judicial Practices

[9]        Rule 83(b) acknowledges that individual district judges may “regulate [their] practice in any manner consistent with” federal and local rules or statutes.[22]  These preferences are often expressed in “practice guidelines” or in case management forms reflecting the preferences of individual judges.[23]  Many districts provide easy access on websites,[24] but in some instances, they can be difficult to locate.

[10]      District judges play an active role in tailoring e-Discovery to the needs of individual cases through case management.  This is consistent with an inherent right to manage individual cases,[25] which trumps mandates of the national and local rules.  It has been observed that individual judicial practices may introduce more disuniformity into the civil litigation process than do varying local rules.[26]  Not surprisingly, commentators universally advocate paying close attention to such local practices.[27]

C.  Standardized Forms

[11]      Standardized forms are provided in many districts for reports under Rule 26(f), discovery plans, scheduling orders, and the like, to conform to national or local requirements.  In some districts, the forms may be an integral part of the local rules.  In others, their adoption, modification, and implementation constitute an ad hoc process.  The ease of access varies with some districts doing better than others.[28]

[12]      The Administrative Office of the Judicial Conference (the “AO”) makes national forms relating to discovery available but none relate to case management.[29]  The Federal Judicial Center (the “FJC”) has collected some sample forms in connection with its Civil Litigation Management Manual.[30]

D.  Consistency

[13]      The consistency of a local rule with the Federal Rules can present subtle issues.  If a local initiative is challenged, the test is “whether the two rules are textually inconsistent or whether the local rule subverts the overall purpose of the federal rule.”[31]  When a specific amendment is at issue, reliance on the intent expressed in relevant Committee Reports is one of the factors used to assess the intended effect.[32]  In Colgrove v. Battin, for example, the Court tolerated local rules that reduced the minimum jury size despite what appeared to be an inconsistent federal rule.[33]

[14]      Congress has from time to time authorized the development of local initiatives without regard to consistency.[34]  One can attribute the current diversity in case management regimes in many districts to measures adopted because of the 1990 Civil Justice Reform Act, under which districts were directed to address cost and delay in civil litigation from “the bottom up.”[35]

[15]      Local districts are expected to act consistently with the Federal Rules.[36]  Copies of local
rules must be furnished to the Administrative Office and to the relevant Circuit Judicial Council.[37]  The Judicial Councils have the primary responsibility to ensure “consistency [of Local Rules] with [existing Federal Rules],” and the power to “modify or abrogate any such rule.”[38]  Historically, Circuit Councils have not taken an active role,[39] although there are current signs to the contrary.[40]  As recently as 2004, an ad hoc committee of the Standing Committee studied a subset of the local rules for consistency and made recommendations to the district courts involved.[41]

E.  “Pilot Programs”

[16]      The Judicial Conference and Congress utilize formal pilot projects to test procedural innovations.  For example, “[f]ourteen federal district courts have been selected to participate in a 10-year pilot project . . . to enhance expertise in patent cases among U.S. district judges,” which will involve the generation of sample local rules and forms.[42]  In addition, a pilot project designed to standardize early disclosures in employment litigation has been undertaken[43] for use by individual judicial officers or as a model for a local rule.[44]

[17]      The Federal Rules do not, however, explicitly authorize experimental or “pilot projects” to test innovative local rules or procedures.  Indeed, the Rules Committee refused to proceed with such proposals in 1983[45] and 1991.[46]  Nonetheless, the District of Colorado recently amended its local rules to authorize pilot programs or special projects by general order.[47]

[18]      There is a history of reliance on local experimentation before adopting a measure as a uniform federal procedural rule.[48]  It is far less risky to experiment with potential solutions at the local level, which are “inspired by a belief that the [national] rulemakers got it wrong.”[49]  District courts “are willing to try [solutions] because others have confidence in them.”[50]  Consistency with the Federal Rules is rarely perceived as a barrier under those circumstances.[51]

 

III.  Local E-Discovery Initiatives

[19]      At their core, the 2006 Amendments responded to the need to enhance the discovery of electronically stored information.[52] They became effective in December 2006 when, after several years of study, it was apparent that the differences between electronic data and traditional documents justified rule amendments.[53]

[20]      In their final version,[54] changes to Rules 16(b), 26(a), and 26(f) were coupled with broadly worded amendments authorizing the discovery of electronically stored information (“ESI”), dealing with its form or forms of production, and providing in Rule 26(b)(2), a vague presumption against the production of ESI from inaccessible sources.[55]  No meaningful standards for preservation were included and cost shifting was ignored.  The Amendments were largely silent as to the role, if any, of local rules and standardized forms.

[21]      As noted, federal district courts have reacted in a wide variety of ways, ranging from total avoidance of the subject to an assortment of actions involving local rules, informal guidelines, and standardized forms.

A.  Early Enactments

[22]      Before the 2006 Amendments took effect, few districts addressed the unique issues that e-Discovery presents.  The Eastern and Western Districts of Arkansas were the first to act when they adopted an “Outline For [FRCP] 26(f) Report” for use in their districts.[56]  At the 2004 conference held at Fordham Law School, an involved judicial officer reported that the experience under the rule to date had been that “most attorneys work out these issues at the onset of litigation and make a report.”[57]

[23]      District courts in Wyoming,[58] New Jersey,[59] and the Middle District of Pennsylvania[60] also adopted local rules that utilize a similar approach, with an added focus on counsel undertaking preparatory investigation of client systems.[61]  In addition, the District of Delaware issued a “Default Standard,” which required, inter alia, that parties appoint “retention coordinators” and consult with an eye towards reaching binding preservation agreements.[62]

[24]      The Northern District of Ohio[63] and the Middle[64] and Western[65] Districts of Tennessee quickly adopted Delaware’s Default Standard.  Those provisions remain in effect, although the Delaware standard has been significantly updated since then.

B.  Post Amendment Activity

[25]      After the Amendments came into effect in late 2006, additional districts acted to highlight e-Discovery issues.[66]  The primary emphasis was on preservation, form of production, and presumptive limits on production from inaccessible sources of ESI.  Some districts merely referenced ESI as a topic for discussion.[67]  Others provided extensive checklists of the items identified in the Federal Rules.[68]  Yet, other districts, such as those in Mississippi,[69] Pennsylvania,[70] and New York,[71] provided substantive guidance in mandatory terms.

[26]      The bulk of the changes were reflected in the standard forms in use for case management.  Many districts simply incorporated references to the topics referenced in Rules 26(f) and 16(b).[72]  Other districts went further[73] and used “speaking forms,” which include substantive instructions on how to handle the issues.[74]

[27]      A few districts, such as the District Court of Kansas, provided informal “guidelines.”[75]  The Central District of Illinois posted the Sedona Conference^® Principles along with its local rules and orders.[76]  Perhaps the most ambitious effort was the twenty-eight-page “Suggested Protocol for Discovery of [ESI]”[77] adopted for use before courts in the District of Maryland that blends suggestions with mandatory elements.[78]

[28]      There has also been a revival of case differentiation under which e-Discovery guidance is tied to the type of litigation.[79]  The Southern District of New York is currently testing the impact of an enhanced model order applied on a case-by-case basis in cases deemed to be complex.[80]

[29]      A similar differentiation process is occurring with respect to patent litigation.  In the Districts of Maryland[81] and Massachusetts,[82] for example, the only mention of ESI in the district rules relates to patent litigation.  Similarly, a subcommittee of the Federal Circuit advocates the use of targeted rules for e-mail production in patent cases.[83]  As noted, the District of Oregon has recently proposed to adopt the model order as a local rule.[84]

C.  The Second Wave

[30]      Since roughly 2009, local initiatives have increasingly focused on pragmatic solutions for issues emphasizing the role of proportionality and cooperation.  A leading example is the Seventh Circuit E-Discovery Pilot Program, a comprehensive approach implemented by Standing Orders adopted in individual cases.[85]  The pilot program is based on “principles” designed to encourage cooperative resolution of disputes while emphasizing guidance on the underlying issues.[86]

[31]      Principle 2.04 (Scope of Preservation), for example, mandates the taking of “reasonable and proportionate steps to preserve relevant and discoverable ESI” within a party’s possession, custody, or control.[87]  This articulation, a first among rules, echoes the Sedona Conference^® Proportionality Principles[88] and helps to fill the gap in the 2006 Amendments.  Another innovative feature is the inclusion of a list of categories of ESI which are “generally not discoverable in most cases” and whose possible preservation must be raised “at the meet and confer or as soon ther
eafter as practicable.”[89]  These proportionally based distinctions also correspond to the recommendations found in the Sedona Conference^® Best Practice Principles.[90]

[32]      The Northern District of Illinois has recently proposed a local patent rule oriented towards guidance along similar lines.[91]  Presumptive limitations were also incorporated into the revised Delaware Default Standard,[92] whose categories of ESI in its appendix echo those of Principle 2.04.[93]  Similarly, the model protocol proposed for use in the Western District of Washington also lists categories of ESI that do not need to be preserved.[94]

[33]      The Federal Circuit has also introduced a “Model Order” for patent cases that addresses the number of custodians from whom production of e-mail may be sought in patent litigation as well as the number of search terms that can be introduced without agreement or court order.[95]  The model protocol was adapted for use in the Eastern District of Texas[96] and proposed for  the Oregon District as a local rule.[97]

 

IV.  Evaluation

[34]      In this Section, the local initiatives enacted to guide e-Discovery are assessed.  The Section first deals with the pros and cons of the emphasis on early agreement before discussing specific elements of interest—and possible shortcomings—that have emerged.

[35]      Promotion of early agreement by parties and active judicial involvement of the judiciary in the management of discovery has been encouraged since at least 1983, but the emphasis on the “meet and confer” process is of more recent vintage.[98]  To some, the 2006 Amendments bring the process to its ultimate intended use.[99]

[36]      The emphasis is on the preparation of a detailed “discovery plan” to be furnished to the court before the initial pretrial conference, coupled with encouragement to courts to include reference to ESI agreements in the scheduling order.  Parties are expected to discuss any preservation issues and disclosure and discovery issues.  Rule 16(b) makes it clear that any scheduling orders can “provide for the disclosure or discovery of [ESI].”

A.  The Scorecard

[37]      Many of the ninety-four federal district courts studied,  including a number located in major urban districts, have ignored e-Discovery, at least on district-wide basis.[100]  This even includes some districts that have only recently adopted other amendments to their local rules governing the Rule 26(f) process.[101]

[38]      At least thirty-two districts, however, have acknowledged the discovery of electronically stored information in civil litigation.[102]  Of these districts, seven merely make passing reference to e-Discovery in their local rules.[103]  Another twelve districts[104] emphasize e-Discovery topics deemed most worthy of attention at Rule 26(f) conferences.  Nine districts,[105] as well as others using model orders,[106] have adopted pragmatic solutions that address gaps in the Amendments more aggressively.  At least five additional districts have released non-binding guidance for parties on the topic of e-Discovery.[107]

[39]      Many of these efforts center on use of standardized forms for Rule 26(f) reports and discovery plans, as well as for scheduling orders or case management orders.  This has implications for the future.  With the possible consignment of Official Form 52 to oblivion, it will be important for the Administrative Office of the Judicial Conference to make more of an effort to collect the best extant forms and make them readily available to all districts on its national website.[108]

B.  Early Attention

[40]      It is not terribly surprising that many districts have not yet formally addressed e-Discovery.  Busy courts and practitioners may feel that individualized accommodations can be made in cases where e-discovery plays an important role.  In addition, some may have concluded that the 2006 Amendments and emerging case law suffice to place parties and their counsel on notice of the need to address e-Discovery.

[41]      However, there is another possibility.  It may be that the assumed efficacy of early attention to ESI discovery is overstated.  Most Rule 26(f) conferences last for short periods and rarely involve ESI issues.[109]  The conferences may be poorly timed.[110]  Preservation decisions, for example, must often be made before Rule 26(f) conferences.[111]  Moreover, the idea that busy judges can resolve meaningful disputes about the scope of discovery before requests have even been served may be wishful thinking.  There are also avoidable costs that may be wasted if expended too early on e-discovery.[112]  After all, most cases settle.[113]

[42]      Accordingly, it is not clear that front-loading the process by intense and expensive preparations is the most effective means of reducing costs and encouraging cooperation.   Other solutions may be required, such as presumptive “hard limits” or cost shifting, which provide assurance of fairness.  The advantage of experimentation with such measures at the local level is that adjustments can be made as experience mounts, with the best of them slated for national rulemaking.

C.   Assessment:  The Core Initiatives

[43]      Local initiatives have been prompted by the gaps in the 2006 Amendments, especially as to the onset and scope of preservation obligations, variances in culpability for sanctions, the lack of cost-shifting, and the vagueness of the application of the “accessibility” doctrine to preservation.

i.  Preservation

[44]      The 2006 Amendments ducked preservation issues.[114]  Instead, drafters added Rule 26(b)(2)(B), a presumptive limitation on production of ESI based on “accessibility” subject to overriding for “good cause.”[115]  No attempt was made to deal with its implications for preservation, despite an understanding of the issue.[116]

[45]      The Seventh Circuit Pilot Principles and other local initiatives address this shortcoming directly.  Principle 2.04 provides that “[e]very party to litigation and its counsel are responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody or control.”[117]  In addition, the Seventh Circuit Principle limits the need to preserve specific forms of ESI[118] absent agreement, thus removing incentives to “sand-bag” an opponent by not mentioning the preservation issue earlier.

[46]      The revised Delaware Default Standard[119] also notes that parties need not modify “on a going-forward basis” the backup or archive procedures in place provided that they preserve non-duplicable discoverable material.  Proposals from the Western District of Washington[120] and the Northern District of Illinois[121] also incorporate adopted elements of this approach, as do examples from best practice agreements of parties.[122]

[47]      Professor Stephen Subrin has noted that firm limits are often the best way of “providing constraint, focus, and predictability to the unruly aspects of the federal rule[s].”[123]  They provide a useful “starting point to allow parties and district courts to tailor discovery plans as appropriate”[124] and help deal with “over-preservation,” an abiding problem identified at the 2010 Duke Litigation Conference and the Dallas Conference of 2011.^[125]

[48]      Given that specific limitations already exist on the use of interrogatories[126] and depositions,[127] it seems unlikely that limits on preservation efforts exceed permissible consistency boundaries.  The limits are subject to the discretion of the court, applied on a case-by
-case basis, and are not textually inconsistent with any existing rule or statute.

[49]      It would be preferable, however, to adopt these presumptive limitations as a national rule.  The Civil Rules Advisory Committee (the “Rules Committee”) is considering recommending the amendment of Rule 26(b)(1) to limit discovery to information “relevant to any party’s claim or defense and proportional to the needs of the case considering [the factors transferred from (b)(2)(C)(iii)].”[128]  That approach could be combined with other pending proposals to provide “default limitations on discovery of [ESI],” which are “useful referents for preservation decisions,” given that preservation is limited to “‘discoverable’ information.”[129]

ii.  Cooperation

[50]      The Federal Rules do not currently mandate a “duty to cooperate,” having explicitly rejected proposals to do so in former times.[130]  Instead, the Rules require participation by counsel and parties in “good faith” in preparing discovery plans and attending case management conferences.[131]

[51]      Many local rules, however, invoke cooperation as an aspirational standard.[132]  Thus, the Delaware Standard[133] provides that the court expects parties to cooperate with each other in arranging and conducting discovery.[134]  Similar expectations are found in certain ESI Guidelines[135] as well as individualized judicial instructions.[136]  The model order recommended for use in the Northern District of California recites that “[t]he parties are aware of the importance the Court places on cooperation and commit to cooperate in good in good faith throughout the [litigation covered by the Order].”[137]

[52]      Some districts emphasize that this involves “voluntary” action of counsel through “informal, cooperative discovery practices.”[138]  Local Rule 26.4 for the Southern and Eastern Districts of New York also provides that cooperation of counsel must be “consistent with the interests of their clients.”[139]  An open-ended mandate for cooperation, however,  is a slippery slope.[140]  A court has no authority to force a party to compromise a position that it does not wish to take.[141]  Placing that burden on counsel can put counsel in an impossible position with her client.[142]  There is also the problem of interference with the primary source of counsel responsibility, the state licensing activities.[143]

[53]      It is clear, however, that the judicial enthusiasm for cooperation is widespread and growing.  One can safely assume that this will continue given the enthusiasm for the call to change the “culture of discovery from adversarial conduct to [one of] cooperation.”[144]  There seems to be no fundamental inconsistency between the Federal Rules and a call for “cooperation” under local initiatives.^[145]

[54]      The Rules Committee has been asked to consider adding cooperation to Rule 1.  At the November 2012 meeting, the Duke Subcommittee appeared to step back from earlier support for requiring that “parties [should] cooperate to achieve” the ends of Rule 1 because of the open-ended nature of the commitment.[146]  However, no vote was taken on the proposal, which remains open.[147]

iii.  Cost Shifting

[55]      The 2006 Amendments avoided dealing with allocation of excessive costs attributable to preservation or production of ESI.  A number of local initiatives identify cost shifting as an option.  New Jersey local rules, for example, require parties to discuss “[w]ho will bear the costs of preservation, production, and restoration (if necessary) of any digital discovery.”[148]  Wyoming does the same.[149]  The Northern District of Ohio Default Standard provides that while “costs of discovery shall be [generally] borne by each party,” the court “will apportion the costs of electronic discovery upon a showing of good cause.”[150]

[56]      While some argue that rules “should require courts to consider cost shifting whenever a party seeks electronic discovery,”[151] a better approach would require cost-shifting for additional costs of preservation and production beyond a core of basic information.[152]  The Model Order for the Federal Circuit, for example, requires that “[c]osts will be shifted for disproportionate ESI production requests pursuant to [FRCP] 26.”[153]  Thus, e-mail production requests are limited “to a total of five custodians per producing party” with costs shifted for additional requests.[154]

[57]      The Duke Subcommittee of the Rules Committee, while stating that it “is not enthusiastic about cost-shifting,” has endorsed an amendment to Rule 26(c) that makes the availability of cost shifting a more “prominent feature of Rule 26(c).”[155]  Those provisions could be “fine-tuned” to differentiate between costs related to core information and those which exceed presumptive limitations.

[58]      Congress is currently taking a “watch and see” attitude, but is clearly interested in the issue.[156]

iv.  Production Formats

[59]      Rules 34 and 45 provide that ESI is to be produced, absent agreement or court order, in the form in which it was maintained or in a “reasonably usable form.”[157]  The clear preference is for parties to reach agreements without involving the courts.[158]  The Rules Committee apparently anticipated that local rules would “pick up the slack.”[159]  That appears to be exactly what has happened.

[60]      By an overwhelming consensus, local rules and guidelines favor the use of text searchable “imaged” formats, such as PDF, TIFF, or JPEG files for production of e-mail and other document like images.[160]  Parties are free, of course, to vary requirements and to specify the fields of metadata to be included in load files to accomplish these goals.[161]  Native production is used only for files “not easily converted to image format, such as Excel, Access files, and drawing files.”[162]

[61]      As explained by a leading case, “even if native files are requested, it is sufficient to produce memoranda, emails, and electronic records in PDF or TIFF format accompanied by a load file containing searchable text and selected metadata.”[163]  Given the consistency of this approach with the intent of the 2006 Amendments, there is no need to further address this by amendments to the national rules.

v.  Search Methodology

[62]      A number of local rules require parties to discuss search methodology, including an exchange of information about any keywords employed,[164] and favor “dialogue to discuss the search terms, as required by Rules 26 and 34.”[165]  The Delaware Default Standard suggests that “a requesting party may request no more than 10 additional search terms to be used in connection with an electronic search.”[166]

[63]      More recently, “predictive coding” and other types of “latent semantic indexing”[167] began to raise similar issues.  One challenge is that parties who seek to utilize these techniques may be required to make a copy of the set of responsive and non-responsive materials used to “train” the mathematical models employed available.[168]

[64]      However, while measures supporting discussions are consistent with the Federal Rules, one cannot reasonably read Rule 16 or Rule 26(f) to support mandating the choice.[169]  As emphasized in Sedona Conference^® Principle Six, “[r]esponding parties are best situated to evaluate” and choose the “procedures, methodologies, and technologies” most appropriate to preserve and produce their own ESI.[170]  Compelling a particular choice without regard to individualized proof that a party would not otherwise meet its discovery obl
igations[171] would improperly intrude on “private primary activity”[172] because it affects “behavior at the planning as distinguished from the disputative stage of activity.”[173]

[65]      It is one thing to require, for example, designation of a contact person or “liaison” to coordinate with the court and parties on technical e-Discovery issues.[174]  It is quite another to reach out beyond the litigation context and compel a party to use a particular methodology in carrying out its obligations.[175]  Any such basic change requires national authorization.[176]

vi.  Disclosures Without Discovery

[66]      Some local rules impose affirmative obligations on counsel to become knowledgeable about client information management systems[177] and requires counsel to share that information during the Rule 26(f) process.  According to one local drafting committee, these types of rules are intended to “express the obligations of counsel as articulated in case law beginning with the Zubulake cases.”[178]

[67]      In a broad sense, this is consistent with the observation in the Committee Note to Rule 26(f) that “[i]t may be important for the parties to discuss [information systems] and accordingly important for counsel to become familiar with those systems before the conference.”[179]  However, these comments in the Committee Note are not sufficient to supersede the limitations on disclosures without discovery so carefully expressed in Rule 26(a).[180]

[68]      Rule 26(a) limits early disclosures to information that a party “may use to support its claims or defenses.”[181]  The 2006 Amendments did not expand its scope.  Parties are not required to undertake an open-ended, costly, and ultimately premature effort to locate and review information.^[182]

[69]      The issue arose at the 2004 Fordham Conference prior to the adoption of the amendments to Rule 26(a).  While noting that the local rules in New Jersey and Wyoming mandated that counsel acquire information about client systems, one speaker noted that “it may be that, for national rules, such a directive would be viewed as too intrusive.”[183]

[70]      The former chair of the Standing Committee has also noted that a “local rule that require[s] parties to provide an information system ‘map’ at the Rule 26(f) conference” would go “beyond [the] national rules.”[184]  Absent further amendments to the Federal Rules, therefore, local rules and guidelines should seek to accomplish these goals by voluntary, not mandatory, compliance.  Under the case law, the act of requiring a party through its counsel to “furnish more information than is required” is barred.[185]

vii.  Rule 502 Orders

[71]      The 2006 Amendments included a “clawback” mechanism in Rules 26 and 45 to deal with post-production claims of privilege or work-product production, but made no attempt to establish the conditions under which “waiver” by such production could occur.[186]  In 2008, Congress enacted Federal Evidence Rule 502 (“FRE 502”),[187] limiting privilege waiver for “inadvertent” disclosures when the holder “took reasonable steps to prevent disclosure” as well as prompt and reasonable steps to rectify the error.  The Rule also authorized court-adopted agreements that bind parties and non-parties in federal and state cases, even over objection, to waiver-free production without proof of reasonable precautions.[188]

[72]      Surprisingly few districts have emphasized Rule 502 in local rules, guidelines, or amended forms.  Many forms simply ask whether a court order “will be requested, either on stipulation or otherwise” to address the manner in which ESI subject to claims or work product protection will be handled.[189]  However, more recently adopted local rules and model protocols routinely deal with the issue.[190]  It should also be addressed in any new standardized forms that the Administrative Office develops to supplement or replace Official Form 52.

 

IV.  Conclusion

[73]      There has been a healthy proliferation of local e-Discovery initiatives for use in district courts in the federal judicial system.  There is no obvious pattern emerging as the dominant approach.

[74]      Unfortunately, there is very limited empirical evidence on which one can base a conclusion as to the most effective type of local initiative.  The topic has received very little attention[191] and only the Seventh Circuit pilot program has attempted to survey its users.[192]  Hopefully, other districts will put more effort into such surveys.  As demonstrated by the evolution of the Delaware Default Standard, trial and error is useful.

[75]      There is substantial anecdotal evidence, however, that early attention to ESI can play an important role in reducing unnecessary disputes.[193]  Certainly, that effort is preferable to ignoring potential disputes that can be avoided.  The trick seems to be to find the right balance, blending a “light touch” with avoidance of unnecessary costs that produce no gain.  Ultimately, however, the choice between doing nothing and jumping in with both feet is a matter of style that reflects the culture of the district and the degree to which it can be seen as appropriate.[194]

[76]      In the main, the ninety-four districts present the reassuring conclusion that the local rules and forms in current use are largely consistent with the 2006 Amendments.  Moreover, the local initiatives do not appear to be the problem that the Standing Committee originally feared.^[195]  There is no drumbeat of complaints, aside from one comment in an ABA journal,[196] that the diversity of local e-discovery procedure has had an adverse impact.  There is no need for drastic action reining in local rulemaking, even if that were somehow possible.

[77]      However, as noted, procedural uniformity could be enhanced by converting some of the local initiatives into national rules.  After six years, the tentative approach of the 2006 Amendments, can safely give way to a more confident and aggressive attempt to improve predictability and address the exploding costs of e-Discovery.

 

---