The parties are generally entitled to discovery of relevant and admissible evidence during litigation. This process includes the discovery of electronically-stored information (“ESI”) which can be stored at internal and external locations such as the local area network and cloud. It has become more prevalent for companies to transfer their electronic files to the cloud to reduce costs. It is now more practical to upload and transfer data to a third-party’s servers. However, there are certain risks associated with this process. First, you will be relinquishing control over the electronic information. Second, you will not have control over the third-party’s information security protocols. In other words, even if the electronic information is originally encrypted, it may lose its encryption status if uploaded or transferred to the third-party’s servers.
It is important for attorneys to have a general understanding of the client’s network infrastructure. So, it is always recommended to interview the client’s information technology staff. This way, legal counsel can be better prepared to ask and answer discovery-related questions. Moreover, the relevant discovery rules are outlined in the Federal Rules of Civil Procedure 26, 33, 34, 37, and 45, and Federal Rule of Evidence 502.
Court Mandated Guidelines
The courts have set guidelines for discovery of electronically-stored information. The purpose of these guidelines is to promote reasonable electronic discovery and to limit the time, burden, and costs. Rule 1 of the Federal Rules of Civil Procedure (“FRCP”) ensures the just, speedy, and inexpensive determination of every action and proceeding. The guidelines expect cooperation between the parties in reference to the preservation, collection, search, review, and production of the electronic information. FRCP 26(f) requires an early discovery conference between the parties where they should discuss the following topics: (1) preservation; (2) network system that yields the ESI; (3) production and search; (4) discovery phases; (5) protective orders; and (6) efficiency and costs.
The parties are obligated to preserve the relevant and admissible electronic information. It is a practical measure to send a preservation notice to the opposing party and outline the necessary details such as the party names, witness names, time periods, and sources of electronic information.
The parties have the right to issue discovery objections and obtain a protective order pursuant to Rule 502 of the Federal Rules of Evidence. The courts encourage informally resolving discovery-related issues and to address them in their joint case management statements. They also encourage the parties to designate an e-discovery liaison who has the necessary knowledge regarding the location, nature, accessibility, format, collection, searching, and production of the electronic information.
Discovery from non-parties is also part of the equation. So, there may be a point where counsel is required to seek electronic information from a third party – e.g., communication service provider. In Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) and its subsequent counterpart lawsuits, the court addressed this issue and provided a comprehensive factual analysis. The court was faced with the question of whether spoliation of evidence by the defendant warrants an adverse inference instruction. The answer was negative where the court found that the duty to preserve relevant electronic information arose when litigation was anticipated. The court outlined plaintiff’s burden which is to show negligence and to prove the negligent behavior has caused the loss of relevant information.
California Electronic Discovery Act
The California Electronic Discovery Act (which is also known as Assembly Bill 5) allows litigants to obtain discovery by inspecting documents, tangible things, land, or other property in the possession of the opposing parties. The law requires the receiving party to respond to each item and provide a statement that it will comply with the inspection demand by the date set for inspection pursuant to the applicable provision. It also allows the litigants to issue subpoenas and request electronically stored information as defined in Code of Civil Procedure 2016.020.
The discovery of electronically-stored information is a key component in litigation. It’s important to know your legal rights and responsibilities when it comes to the rules and regulations. Please contact our law firm to speak with an electronic discovery attorney at your earliest convenience.