Electronic Discovery: How to Handle Electronically Stored Information

Electronic discovery is complicated because it’s a multifaceted procedure. The parties must review the computer network that yields the electronically stored information. They must identify the relevant electronically stored information (“ESI”) and understand the network infrastructure. The collection process is the next step wherein the parties must be able to locate, identify, and collect the relevant information. They may be required to hire forensic data professionals who can use special tools for the discovery process. These forensic data professionals should have access to electronic data discovery software. They should be able to procure mirror images of the electronic files which may yield metadata for a proper evaluation. They should also know how to handle metadata and privileged information (e.g., intellectual properties, trade secrets) to avoid complications. However, in most cases the discovery process becomes complicated due to a lack of cooperation between the parties. Therefore, it may be necessary to invoke the right to onsite inspection.

Onsite inspection of the adverse party’s computers is supported by the state and federal rules. For example, Rule 34(a) of the Federal Rules of Civil Procedure grants the right to engage in the onsite inspection of the adverse party’s computers. In California, Code of Civil Procedure Section 2031.010 grants the right to conduct onsite inspections in certain situations. In general, the requesting party should prove the adverse party has destroyed evidence, has altered documents, or has failed in its discovery obligations.

The courts have raised the concept of proportionality in their analyses. They’ve held that the cost and effort of electronic discovery should be justified by the litigation’s nature, amount in controversy, and relevancy of the requested electronic files. The courts have assessed whether the benefits of examination outweigh the privacy interests of the adverse party. If so, then the requesting party is granted the right to electronic discovery. Yet, there is a high probability that they will run into problems such as data alteration, deletion or fabrication.

The parties can agree on the format of data production in the e-discovery process. The rules have acknowledged that reaching an agreement on data production’s format is important. Rule 26 of the Federal Rules of Civil Procedure and the California Discovery Act [e.g., C.C.P. 1985.8, 2031.280(d)(1)] state that they should be exchanged in native format which is the file’s original format. The production of files in their native format preserves the associated metadata and could potentially prevent data alteration claims. For example, Microsoft Word documents should be produced as “.doc” or “.docx” files. Also, the federal rules were amended to provide clarity on how the parties should respond to discovery requests.

There is always the risk of disclosing privileged information in the e-discovery process. The rules have addressed this issue and provided for a retrieval process of inadvertently produced electronic files. This “clawback” provision states that, if privileged information is produced, the parties have certain rights and responsibilities towards each other. For example, the responding party should notify the requesting party and outline the basis for retrieving the electronic files. In response, the requesting party should return, sequester, or destroy the specific electronic files.

The topic of privacy comes up during e-discovery. There could be a reasonable expectation of privacy for an employee’s emails when he or she was using the employer’s computers during work. In some cases, the courts have mandated that discovery should be limited to non-privileged electronic files. However, in Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, the California Court of Appeal held that emails between the employee and her attorney were not confidential since the employee had signed a handbook that specified corporate emails were not confidential. The handbook included a policy concerning use of the company’s technology resources – e.g., computers, email accounts. It directed employees that the company’s technology resources should be used only for company business and employees were prohibited from sending or receiving personal emails. It also warned that employees who used the company’s technology resources to create or maintain personal information or messages had no right of privacy. So, in essence, she had no “reasonable expectation of privacy” in the emails she sent to her attorney because her employer could monitor emails.

It’s important to know your legal rights and responsibilities when it comes to electronic discovery. Please contact our law firm to speak with a knowledgeable e-discovery attorney at your convenience.