Guide to E-Discovery in the 50 States

The National Center for State Courts has published a guide detailing how rules governing electronic discovery are applied in the 50 states. Best Practices for Courts and Parties Regarding Electronic Discovery in State Courts includes sections on the areas in which state courts generally agree on the preservation and production of ESI, and a section which lists key electronic discovery rules in each state.

There is a consensus among state courts that both parties making claims and those defending them have an obligation to make reasonable efforts to preserve data needed for foreseeable litigation. A litigation hold must be issued to relevant custodians. Parties may be obligated to provide data they have access to in the cloud. Parties are not obligated to retain data that is overwritten by the routine operation of information systems. Under the 2015 amendments to the Federal Rules of Civil Procedure, the steps taken to preserve ESI must be proportional to the needs of the case. Punitive measures should only be imposed for the failure to preserve ESI when there is culpable intent.

Parties need only produce ESI which is relevant and proportional to the needs of a case. When making requests and objections to those requests, parties have an obligation to cooperate. Single PDFs can be an acceptable format for small productions. A party receiving inadvertently produced privileged material must notify the producing party of their discovery of this information. Federal Rule of Evidence 502 addresses such inadvertent production of privileged documents. Some courts have required transparency with respect to the black box operations used in technology assisted review. A search protocol can help prevent disputes between the parties.

Arizona - a pending petition to amend the Arizona Rules of Civil Procedure does not include changes regarding proportionality adopted in 2015 amendments to the FRCP.

California - an Electronic Discovery Act limits discovery on the basis of both proportionality and accessibility.

Colorado - has not adopted the amended version of FRCP 37(e) or limited the production of inaccessible ESI as specified by FRCP 26(b)(2)(b).

Florida - has not resolved whether or not there is a pre-litigation duty to preserve.

Illinois - proportionality considerations were added under Illinois Civil Rule 201(c)(3).

Massachusetts - did not adopt a proportionality standard after the December 2015 FRCP amendments, but instead took a wait and see approach.

New Jersey - Rule 4:18(c) requires certification that a good faith search was made for ESI, and imposes a duty to supplement.

Pennsylvania - the Pennsylvania Supreme Court's Rules of Civil Procedure prohibit under Rule 4011 bad faith discovery or discovery which causes unreasonable annoyance, embarrassment, oppression, burden or expense.

Texas - in Brookshire Bros. v. Aldridge the Supreme Court of Texas ruled that evidence of spoliation cannot always be submitted to juries.

Wickr

Inquire if your clients use Wickr, an instant messaging app often used in business to send secure messages. Wickr employs end-to-end encryption so that messages are encrypted even when they are stored. It includes a 'seff-destruct' option which will automatically erase messages shortly after they are sent, so it can function like SnapChat. Wickr is a high end product - it can be implemented for 100 users at a cost of $50,000. It's a good alternative to collaboration tools like Slack that lack an encryption feature.

Wickr's web site notes an important exception to the requirement of the GDPR that data security breaches be reported immediately. Notice is not required under Article 33 if encryption has rendered data unintelligible to unauthorized users. Another good reason to send business related messages with encryption.

The Role of Paralegals in Electronic Discovery

Paralegals are too often associated with the practice of discovery as it was conducted before the dawn of the electronic discovery era. Experts in the field of electronic discovery recognize that paralegals have a key role to play in production of electronic evidence, and my own experience as a litigation paralegal as shown that there’s a lot of work to be performed with ESI that lies outside of the areas litigation support groups focus on.

The EDRM’s Talent Task Matrix identifies 25 tasks that a paralegal can perform in the identification, preservation, collection, processing, production and presentation of ESI. See, http://www.edrm.net/frameworks-and-standards/talent-task-matrix/ . These tasks include documenting a defensible audit trail; ensuring metadata is collected in a legally defensible manner; and tracking media through each stage of electronic discovery. Craig Ball’s Electronic Discovery Workbook notes that the task of maintaining data maps may often fall to paralegal. See, http://www.craigball.com/Ball_E-Discovery_Workbook_Ver.%2018.0221.pdf, at 101. In Michael Quartararo’s Project Management in Electronic Discovery, he states that his aim is to apply “the established principles of project management to each phase of e-discovery, blending the roles of attorney, paralegal, and project manager into a complementary collaboration.”

After electronic discovery is completed and document images and native files have been produced, attorneys will have to work for months or years with the data before it is presented at depositions or at trial. Litigation support departments will have analysts focused on database administration and software support. A paralegal can fill an important gap between the traditional areas of litigation support and the day to day technical needs of attorneys. A data analyst assigned to litigation support may not be an expert in Excel. Digital graphics specialists hired from outside vendors may not be able to comply with demands to finalize demonstratives on short notice. An attorney may be more comfortable having a paralegal they have a good relationship in the ‘hot seat’ conducting an electronic courtroom presentation than an outside technician they will not meet until shortly before trial.

Work that is normally assigned to paralegals can be completed more quickly and accurately through the use of technology. Adobe actions can be used to automatically redact terms in PDF documents. Visual basic macros for MS Word can link exhibits cited in deposition outlines. Printers can be set to insert tabs and slip sheets automatically to cut down on the time required to assemble binders. A paralegal may be the person most familiar with technical requirements for court filings. For example, some courts require filings to be in the PDF/A archive format. It makes sense that the same person responsible for cite checking a brief will also be the one expected to know how to use the LinkBuidler add-in for MS Word developed by the United States District Courts that automatically inserts hyperlinks to other court filings.

Nearly every paralegal is asked by an attorney to run searches in document databases on a regular basis. Tracking down particular kinds of documents in an e-discovery platform such as Relativity can be made easier if the person doing the searches understands the significance of hash values, or how to structure a regular expression search.

Logging electronically stored information collected from clients and third parties is a critical part of electronic discovery. Hard drives, discs, and data posted to file share sites may be directed to paralegals first. They can run the dir command in Windows to create complete indices of the files on electronic media and prepare summaries of the content. If a paralegal must maintain logs detailing the content of document productions, they should also prepare descriptions of the kinds of information on each unit of electronic media received before productions go out.

In the field of information governance someone at a law firm needs to be aware of regulations governing electronic records. The fact that the National Association of Securities Dealers has regulations prohibiting communications with customers from home computers is not the most crucial part of securities law, but this is something a paralegal can remember for her or his lawyer. A paralegal may be asked to help a client implement a records management policy. It’s important to have someone with expertise in which laws and regulations require electronic evidence to be retained.

Attorneys focus on the law. Litigation support professionals focus on technology. Paralegals can be best positioned to focus on managing the projects of a litigation team. Paralegals routinely keep track of deadlines, and can help make sure that the processing and review of ESI stays on schedule. Paralegals can evaluate proposals from multiple vendors who compete to perform electronic discovery assignments. Contract management software can be used to track existing agreements to provide e-discovery services. In the Electronic Discovery Institute’s course on Budgeting and Project Management, Elizabeth Jaworski, the director of legal operations at Motorola, recommended the use of a RASCI chart to monitor who is Responsible, who is Accountable, who is assigned to Support others, who must be Consulted, and who should be Informed. I’ve used this approach with success directing projects at my firm.

Expanding the role of paralegals to cover technical tasks overlooked by litigation support professionals and project management approaches ignored by attorneys can help a firm serve its clients more effectively.