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Cite as: Christopher J. Ryan, Jr., Not-So-Open Access to Legal Scholarship: Balancing Stakeholder Interests with Copyright Principles, 20 Rich. J.L. & Tech. 1 (2013), http://jolt.richmond.edu/v20i1/article1.pdf.

 

By Christopher J. Ryan, Jr.*

 

I.  Introduction

A.  Recent Developments in the Case for Open Access to Scholarly Research

[1]        Last February, John P. Holdren, director of the White House Office of Science and Technology Policy, issued a new policy designed to increase open access to federally-financed research.[1]  The memorandum, covering federal agencies with annual expenditures in excess of $100 million for scientific research and development, requires, inter alia, that: (1) agencies develop “clear and coordinated policies” to make federally-funded studies freely available to the public within one year of publication, and (2) researchers account for and manage the digital data resulting from federally-funded scientific research.[2]  In addition, the policy requires data from publicly-funded research to be stored for “long-term preservation and [be] publicly accessible to search, retrieve, and analyze in ways that maximize the impact and accountability of the Federal research investment.”[3]  The policy also encourages agencies to collaborate with each other as well as with private entities to accomplish these important goals.[4]

[2]        This new policy marks an important step toward open access and appears to have satisfied both publishers and most open access advocates.[5]  The policy’s purpose is clear: it rests upon the proposition that citizens deserve easy access to the results of scientific research funded by their tax dollars.[6]  The Office of Science and Technology Policy has examined the issue at length by soliciting stakeholder input and convening an interagency work-group to develop a policy that would balance these often divergent interests.[7]  Among the stakeholders considered were “scientists and scientific organizations, publishers, members of Congress, and other members of the public,” all of whom recognize the importance of meeting the demand for expanded access to the results of publicly-funded research.[8]

[3]        The policy inspired congressional interest, resulting in the Fair Access to Science and Technology Research Act of 2013—bipartisan companion bills in the House and Senate.  The companion bills’ aim is to make having the results of federally-financed research publicly available within six months of publication the law of the land rather than the precedent of one presidential administration.[9]  Between the policy and the legislation, the timelines for open access after publication differ by six months.[10]  That said, the functional effect of the policy and legislation is identical: providing a temporal window in which publishers and researchers may capture the value of the publication of new studies while also allowing for public use once these economic interests have been realized.

[4]        Though both the policy and legislation explicitly cover scientific data, research, and journal articles, each course of action also has the potential to impact scholarship broadly, including federal agencies in the humanities and social sciences.[11]  Moreover, both documents specifically contemplate the significance of public digital access to all academic scholarship, without simply confining its importance to the sciences.[12]  Also, anticipating the end result of recent digital publication trends, both the policy and legislation underscore the effectiveness of digital documentation as a superior medium for storing, archiving, and transmitting data, while acknowledging the limitations of paper as a medium for the same purposes.[13]

[5]        The policy and the legislation correspond to a rising wave of broad interest in digital access to all scholarship, not simply federally-funded, scientific scholarship.  It is conceivable, then, that this regime may have opened the door to requiring open access in all academic scholarship, regardless of discipline—particularly considering that the federal government awards more than $40 billion each year to American universities for research purposes.[14]  Should the legislation or a similar statute pass into law, it would necessitate clear guidance for all academic scholarship, carefully balancing publishers’ interests with those of authors, institutions, and the public.

B.  The Open Access Movement and the Internet

[6]        The Open Access Movement promotes robust public digital access, via the Internet, to peer-reviewed scholarly work—usually free of charge.[15]  The low cost of digitally publishing and disseminating scholarship, when compared with the average cost of publishing scholarship in print, has been a significant boon to the argument for open access.[16]  Additionally, Open Access Movement advocates point to the practicality of the Internet as a more convenient, if not increasingly more popular, source for publishing, disseminating, and accessing scholarly work.[17]  After all, the expediency of immediately downloading scholarship free of charge from a centralized digital repository—not to mention from the convenience of the reader’s computer, tablet, or smart phone—objectively trumps traveling to a research library to perform a lengthy search for the desired scholarly article.[18]

[7]        But the Open Access Movement, which has itself benefitted greatly from the rise of Internet, also benefits the average user across a multitude of digital media platforms.[19] This is because public digital access to scholarship makes the public’s vast storehouse of “knowledge”—Wikipedia, which, importantly, services the search functions for much of Apple’s Siri and Google—more reliable.[20]  Although secondary and tertiary source sites and programs currently underutilize existing digital scholarly repositories,[21] there is “a potential symbiosis between Wikipedia and academic research in institutional repositories,”[22] because as open-access repositories become more comprehensive, they ensure that the highest caliber of research becomes the primary source for online bloggers, editors, and even the casual Siri query.[23]

[8]        At its core, open access, particularly public access to scholarly research, is grounded in considerations of transparency, accountability, democratic legitimacy, and the fulfillment of perhaps the most fundamental function of academia—providing educational service for the public.[24]  This Article seeks to address the varied stakeholder interests in academic scholarship—specifically legal scholarship.  In Part II, this Article presents a current picture of legal academe and explains the process by which academic scholarship is accessed.  Part III explores the scholarship incentive scheme and evolution of policy and case law defining copyright and ownership interests in scholarship, and applies these principles to the modern employment relationship between faculty member and university.  In Part IV, this Article addresses concerns that an author’s interests are hampered by the university’s ownership of copyrighted works and discusses the economic and social implications of open access to legal scholarship.  Finally, Part V endeavors to recommend considerations for model policy impacting open access to scholarship.

 

II. Academic Scholarship Today 

A.  A Snapshot of the Current State of Legal Academe 

[9]        When U.S. News & World Report began publishing law school rankings in 1987,[25] a new era of insularity, competition for new students, and fixation on standings relative to peer institutions took hold of legal academe.[26]  Pierced by a combination of “U.S. News-driven ranking mania, law schools’ insatiable hunger for growth, and huge law firms’ obsession with profit above all else,” the bubble burst.[27]  In January 2013, the Law School Admission Council reported that law school admission applications were headed for a thirty-year low, in part, because of “increased concern over soaring tuition, crushing student debt, and diminishing prospects of lucrative employment upon graduation.”[28]  The number of law school applicants this year—54,000—is nearly half of what it was in 2004.[29]

[10]      As the volume of law school applications rose in the last quarter of the twentieth century, universities increasingly treated their law schools as profit centers: while data from private law schools is virtually inaccessible, a 2010 report from the University of Baltimore School of Law corroborates a widely held view that universities appropriate between twenty and twenty-five percent of their law schools’ gross revenues.[30]  Dwindling applications and enrollment in the last few months has prompted law schools to layoff and buyout valuable employees.[31]  Many have attacked the U.S. News methodology for compiling its law school rankings as a source of fuel for the conflagration that has engulfed legal education in recent months,[32] even suggesting that faculty production of scholarship is so vital to legal academe that SSRN output should be the measure of a law school’s faculty.[33]  Whatever the cause of these problems, the landscape of legal academe—a historically immutable field[34]—is incontrovertibly changed and must adapt to the modern market to reestablish its relevancy.  Doing so requires reclaiming the primary public functions of legal academe: (1) keeping up with the needs of the profession and the public,[35] and (2) educating the profession and the public on legal affairs.[36]

B.  Access to Legal Scholarship

[11]      Academic scholarship is subject to the practices of the proprietary publishing industry, which, for both academicians and universities, places certain restrictions on scholarship: from access policies and subscription fees to the copyright assignment requirement of several scholarly journals.[37]  In the last decade, university libraries have been forced to choose between purchasing monographs and journal subscriptions, or undergoing complete deaccession of non-essential materials; in contrast, the proprietary publishing industry has continued to enjoy considerable profit margins.[38]  This is not to say the proprietary publishing industry is the villain in this story; it does, however, account for publishing the lion’s share of academic scholarship to the exclusion of resources that promote open access.[39]

[12]      The publication of American legal scholarship, on the other hand, follows somewhat of a different model from that of the other academic disciplines; it is lacking in many of the complications that are commonplace in, for example, publishing scientific scholarship.[40]  While commercial law journals,[41] learned law society journals,[42] refereed law journals,[43] and peer-reviewed law journals[44] do exist, their market share is overshadowed by law journals published by or affiliated with American law schools.[45]  Outside grants rarely fund the production of legal research; in many ways legal publishing already employs open access funding initiatives, similar to how universities encourage open access publishing of scholarship from the other academic disciplines, such as underwriting the “author pays” approach to open-access publishing,[46] and instituting policies to promote faculty contributions to open repositories or journals.[47]

[13]      Critics suggest that an open-access publishing model is unrealistic, ignores vital market factors, and is premised on a deficient understanding of business.[48]  Because open-access publishing methods are largely untested, do not enjoy the same readership, and have not as yet developed a financially viable model, these same critics caution that authors and publishers should be wary of open access publishing—after all, someone must pay the costs associated with publishing scholarship.[49]  These arguments, however, are considerably less convincing in their application to legal scholarship.

[14]      Legal scholarship presents the most straightforward case for open-access publishing because of its unique independence from market factors and reduced reliance on the commercial publishers relative to its peer academic disciplines.[50]  The cost of publishing legal scholarship in law journals is substantially underwritten by the universities with which the law schools are associated, “to an extent that dwarfs both the mailing and printing costs that make up law journals’ chief budgeted expenditures and the subscription and royalty payments that account for their chief budgeted revenues.”[51]  Furthermore, the majority of American law journals rely on unpaid law students to select and edit legal scholarship, and no one participating in the law journal publishing process—from research, writing, selecting, editing, and publication—does so because of copyright incentives.[52]  Perhaps the investment of the law students and their institutions in the production and dissemination of legal scholarship through their law journals—possibly even the very purpose of legal academe—is enhanced by open access publishing.[53]

 

III. The Misaligned Incentive Scheme in Academic Scholarship

[15]     Incentives to encourage academic scholarship in legal academe vary slightly from other disciplines.  However, across all disciples, the majority of publishers of academic scholarship charge expensive subscription fees and limit access by conditioning publication on the scholar’s transfer of copyright interests.[54]  Scholars’ willingness to transfer their copyright interests to publishers is the product of a system that lacks sufficient incentives for the scholars.[55]  In academia, the credo is, and may always be, “publish or perish;” a faculty member’s growing curriculum vitae and publication record is often the measure of his or her professional performance.[56]

[16]      Not only is a large quantity of scholarship publication an important proxy for a successful career as an academic, universities also incentivize scholars to publish in the most prestigious journals.[57]  The problem is a vicious cycle: the perceived reputation of the publication enables its publisher to require scholars to transfer their copyright interests to the publisher, and the publisher’s ownership of these interests, in turn, enables the publisher to restrict access and charge expensive fees.[58]  While duly according the importance of publication reputation, the current incentive scheme that is effectively stripping important copyrights from scholars represents a departure from the recognition of important cultural, social, and institutional dimensions of faculty-produced scholarship.[59]

[17]      When the Constitutional Convention of 1787 was convened to discuss what would become the Copyright Clause, it decided against the Hegelian option written by Charles Pinckney in favor of a clause combining proposals from both Pinckney and James Madison, which is now enshrined in Article I of our Constitution.[60]  The Copyright Clause reads: “The Congress shall have the Power . . . To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.”[61]  The plain language of the Clause’s prefatory language reveals the drafters’ aspirational intent: scholarship and invention were meant to educate and benefit the citizens of the new republic.  Recalibrating the measure of professional performance in academe in favor of incentivizing relevant, accessible publication that promotes the goodwill of the university, regardless of the source of publication, may retract the problem of self-reinforcing incentives and realign the creation of scholarship with our nation’s founding copyright principles.

A.  Legal Treatment of Ownership Interests in Scholarship

[18]      Ownership of the copyright interests in scholarship is somewhat ambiguous and is the subject of considerable debate.[62]  Under federal statute, a copyright in a work attaches first to the author of the work.[63]  Accordingly, the long-standing tradition of the academy affords scholars most, if not all, the copyright interests in their work.[64]  However, the practical application of university copyright policies circumvents the traditional rule.[65]  In fact, for the most part, universities claim ownership in the copyright interests of works created by their faculty under the “works made for hire” exception.[66]  Under the Copyright Act, absent a written and signed instrument in which the parties have expressly agreed otherwise, works made for hire are considered to be the property of the employer or person for whom the work was prepared, for purposes of copyright.[67]  The statutory hook of works made for hire contemplates the following arrangements: (1) works prepared by an employee in the scope of his or her employment, or (2) works specially ordered under one of nine statutory classifications[68] where the parties have also expressly agreed in a signed writing that the work is made for hire.[69]

[19]      Few, if any, faculty works are specially ordered or subject to a signed agreement between university and faculty member categorizing scholarship as a work made for hire; in fact, such an arrangement would be both inefficient and burdensome. Judicial guidance responsive to the question of whether faculty-created works are considered to be “prepared by an employee within the scope of his or her employment”[70] has been relatively scarce, but does provide some, albeit complicating, direction.[71] In considering this issue with regard to copyright interests, the Supreme Court’s multi-factored test in Community for Creative Non-Violence v. Reid[72] represents the standard for resolving the question of whether an employment relationship exists.[73]

[20]      The factors to be considered are: (1) the hiring party’s right to control the manner and means by which the product is accomplished; (2) the skill required; (3) the source of the instrumentalities and tools; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party’s discretion over when and how long to work; (8) the method of payment; (9) the hired party’s role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; and (13) the tax treatment of the hired party.[74] Sealed with ambiguity, the true hallmark of a balancing test handed down from on high, the Court’s decision specifically noted that “[n]o one of these factors is determinative,” and that “the extent of control the hiring party exercises over the details of the product is not dispositive.”[75] While this balancing test only reveals the fact that copyright interests are not decisively settled, it does articulate the criteria that establishes an employment relationship between faculty members and their employer institutions, as well as the ownership of copyright interests in faculty-created works.

B.  The Application of Copyright Interests in the Modern Academic Employment Relationship

[21]      Applying the trappings of copyright law as articulated through statutes and case law discussed above, faculty members are almost certainly employees—as opposed to independent contractors—for purposes of the works made for hire doctrine. Universities tend to hire faculty members who hold terminal degrees and are thus expected to possess refined knowledge and skill in their field; however, a faculty member’s level of skill is distinguishable from that of a project-oriented, independent contractor.[76] Furthermore, the fact that a university chooses not to wield control over the manner and means of faculty-created works does not itself indicate that the university does not possess rights to control faculty creations.[77] Also, while universities serve a multitude of functions, their business is irreducibly that of education and research; thus, faculty-created works, whether manifested as scholarship, service, or teaching, form an essential part of universities’ regular activities.[78]

[22]      Despite this seemingly clear relationship, not every court has characterized the association between a university and faculty member in the same light for purposes of copyright law. Such cases predate the Community for Creative Non-Violence decision, the new authoritative precedent on the issue, but do also cite academic tradition and the fact that scholarship is the result of highly-skilled expertise and creativity as support for deciding that such faculty-created works should fall outside the scope of employment.[79] Certainly this position has its merits; however, unlike common law traditions, which occasionally become codified as the law of the land, academic traditions are nonbinding.

[23]      Finally, a faculty member’s motivations for creating a work should have little bearing on this analysis. The jurisprudence in this area only requires that the work be actuated, in some part, by a purpose to serve the university—a very low threshold to cross.[80] Self-motivation to create a work is not dispositive of whether the work was undertaken to serve, at least in part, the interests of the employer.[81] Unless a work is made “with no intention to [create the work] as a part of or incident to” employment as a university faculty member,[82] the work falls within the scope of employment.[83]  Thus, nearly all faculty-created works are: (1) made within the scope of employment; (2) of a nature for which faculty are employed to perform; and (3) actuated, at least in part, by a purpose to serve the university.[84]  There exists a strong, nearly irrefutable presumption, then, that faculty members are employees of the university for copyright purposes under the works made for hire doctrine; therefore, copyright in faculty-created works vests initially in the university.[85]

 

IV.  Concerns, Benefits, and Applications of University Copyright Interests in Faculty-Produced Scholarship

A.  Addressing the Concern That the “Monopoly” of University Copyright Interests in Scholarship Is a Fetter to Faculty Creativity and the Educational Function of the University

[24]      From academe’s inception, its uniquely creative environment has been its defining feature. Critics argue that a university’s exercise of copyright ownership over faculty-created works undermines faculty innovation by drastically altering this environment.[86]  Further, opponents of vesting the copyright interests of faculty-created work in the university argue that universities should not enforce ownership over these copyright interests at the risk of degrading long-held academic principles and traditions.[87]  Additionally, there are those with concerns that, in practice, the pecuniary interests of the institution will supplant the non-pec
uniary motivations of the faculty member.[88]  However, the current copyright regime’s treatment of ownership interests in the copyright of scholarship has neither stunted faculty creativity nor encumbered the production of scholarship. These concerns, while valid, have yet to come to fruition since the Copyright Act was revised in 1976 and construed to vest copyright interests in universities in their faculty-created scholarship.[89]

[25]      To date, attempts have been unsuccessful to circumvent the default position that the works made for hire doctrine applies to scholarship produced by faculty member employees of a university because they fail to satisfy the requirements of the Copyright Act.[90]  Though the failure of such policies may negatively impact the proprietary scholarly publishing industry, such detrimental impact on this industry also remains to be seen.[91]  It is worth noting that, despite these ownership rights vesting first in the university, in practice universities rarely enforce them as against their faculty members; to do so could diminish what is perhaps a university’s greatest asset—its goodwill.[92]  A university, not unlike other collective groups, is the sum of its parts. Thus, in place of exercising ownership rights in scholarship to the exclusion of its faculty member creator, it is in the best interest of the university, in fulfilling its educational function, to support the public’s interest in open access to scholarly works.[93]

B.  The Implications of Open Access to Legal Scholarship

[26]      Believe it or not, the seeds of change—from purely proprietary publishing to open-access publishing—have been sown at the very top of legal academe for over five years.  In 2008, the Harvard Law School faculty voted to offer their scholarship “freely available in an online repository.”[94]  Later that year, the directors of the law libraries at eleven of the most elite law schools met at Duke Law School to draft what became the Durham Statement on Open Access to Legal Scholarship.[95]  Ushering in the open access era, the Durham Statement called for all law schools to move toward electronic publication of scholarship, to commit to making available and storing electronic versions of scholarship in stable, open, digital formats, and, eventually, to stop publishing journals.[96]  The principal argument for a movement toward open access in legal academe is an easy case to make: in addition to the philosophical principles advanced by open access, on a practical level it supports a vital professional goal of the faculty members by maximizing the impact of their work.[97]  After all, what attorney does not appreciate recognition in his or her field?  Not surprisingly, “[f]ew commentators have objected to the Durham Statement’s call for open access publication of law journals.”[98]

[27]      Apart from these elite schools, however, few schools have followed suit and very few United States law reviews are registered with the Directory of Open Access Journals.[99]  That being said, a growing number of schools post some scholarship content on their publicly-accessible journal websites, despite the risks of reducing revenue from print subscriptions and royalty income from proprietary online aggregators.[100]  This small gesture may expose legal academe’s less than ostensible belief that scholarship fulfills a public good.[101]

[28]      While this Article recognizes the strong policy considerations for applying open-access principles to legal scholarship, the discussion should also be approached from an economic perspective. Perhaps legal academe has tarried in adopting open access publishing because of the absence of any demand to explore low-cost alternatives to the traditional subscription model.[102]  Legal scholarship publishing costs are modest when compared with scholarly publishing in other academic disciplines.[103]  “Law journal subscription prices are low, and have risen at less than the rate of inflation for a generation.”[104]  At the same time, law faculty members enjoy virtually free access to electronic versions of published law review articles through proprietary outlets, such as HeinOnline, Lexis, and Westlaw, all of which require subscriptions.[105]  The driving force for open access in legal publishing comes almost entirely from the perspective of supplying scholarship: law school faculty members who want to increase readership of their research outside of legal academe cannot reach this audience through HeinOnline, Lexis, and Westlaw.[106]  The latter two resources have made vast fortunes from material that is mostly in the public domain, by making it available subject to useful search functionality, but are expensive and  functionally irrelevant to academics outside legal academe.[107]  While these powerful search tools are not without value, reliance on them diminishes when law journals and their parent institutions develop resources to publicly access and archive legal scholarship—an idea with the potential to transform legal scholarship as it currently exists.[108]

 

V. A Recommendation for Ensuring Open Access to Legal Scholarship

[29]      Universities, the holders of copyright in academic scholarship, are uniquely situated to achieve their public, educational function, as well as to reduce reliance on the proprietary scholarly publishing industry, and empower faculty while promoting open access.[109]  In legal academe, many universities already underwrite the cost of submitting scholarship for publication and should extend their support one small step further by providing faculty with financial assistance to cover the associated costs of publication in open-access journals and repositories. [110]  Given that many universities, particularly research universities, are the recipients of federal funds derived from public tax dollars, it is in the universities’ best interest to reinvest some portion of these funds in relevant and publicly accessible scholarship to benefit not only the profession but also local, regional, and national communities.[111]

[30]      With these changes, academe should prioritize the development of a viable alternative method of peer review.[112]  Internally, universities must shift the focus of the existing academic incentive system, and its reliance on the proprietary publishing industry, to examine the ways in which faculty accumulate goodwill for employer institutions.[113] Open-access journals, open educational resources, and open archival repositories serve the important interests of the public that are often ignored in the context of the debate over copyright interest in academic scholarship.[114]  The language of the Copyright Clause could not be clearer in stating that creation of copyrightable works inures to the benefit of the public.[115] Academe’s support of open-access resources is essential; however, it is not necessary for academe to completely emancipate itself from proprietary publishers, many of whom serve an important role in the profession and possess their own stakeholder interests in copyright.[116]  

[31]      The reality is that proprietary scholarly publishers currently exert a disproportionate amount of control over scholarly works.[117]  Perhaps the best elements of existing solutions proffer the best foundation for the application of open access to scholarly publication. The temporal solution put forth by the White House Office of Science and Technology Policy appears to handle the interests of each stakeholder—the scholar, the institution, the publisher, and the public—most fairly.[118]  The open-access repository of faculty scholarship chartered by Harvard presents the ideal access portal and archive of publicly accessible scholarship.[119]   Finally, when compared with individual faculty members, universities have a substantially stronger bargaining position to help reclaim the broad copyright interes
ts that scholars transfer to their publishers as of right. [120]  By exercising ownership of copyright interests in scholarship, universities have the ability to profoundly influence the relevancy and public access of academic scholarship, promoting both the constitutional invocation of the Copyright Clause and the primary public function of the university—education.   

 

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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]

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