Preservation and Spoliation

Introduction Now that you’ve likely had your fill of turkey sandwiches, turkey salad, turkey soup and the like, there is a new development on which to focus.  On midnight December 1, 2015 the eDiscovery-related Federal Rules of Civil Procedure changed for the first time since their adoption exactly nine years ago. The changes fall into three categories:

Continue Reading ESI & eDiscovery FRCP Changes @ 12/1/15 — While You Were Leftover-Eating

The Murky Way         

An oft-repeated translating maxim is: technologists are from Mars, lawyers are from Venus.

So getting IT folks and attorneys — both infamous for acronyms and jargon — to work together during eDiscovery can be challenging.  An interplanetary translator is often needed when attorneys and techies collaborate to tame the world of electronically stored information (ESI) – especially when someone needs to explain status or next steps to the client.


You Talkin’ To Me?

Some different monikers for common ESI terms used in eDiscovery follow below:

(click chart to enlarge)

My favorite is the “custodian” one.  The most oft-misunderstood one in that list could very well be “index”.   But there’s an even more troubling one . . . .


You Say “ARChive”, I Say “ArcHIVE” . . . 

Consider the word “archive.”

 

While its everyday meaning – any kind of information maintained for historical reference – can seem straightforward enough, “archive” in the ESI universe can mean either a backed up set or subset of an organization’s enterprise-wide data, or the e-mails stored somewhere other than in people’s active e-mailboxes.

Complicating matters even further, the term can have two additional connotations in both the worlds of backup and email. In the backup context, “archive” can refer to either: the arcane practice of copying of some or all of an organization’s data into a storage format (in old days, mostly on tape, but now often on hard disk) from which it is restored most typically after a disaster; or live data in “near-line storage” available for a relatively easy connection to the company’s network.

Then, in the e-mail setting, “archive” can refer either to an automated, company-wide repository of employees’ older e-mails; or e-mail messages that an individual manually copies ad hoc to a personal storage file, known as a “.pst” file in the Microsoft Outlook environment.

Sometimes months can go by before the key players realize that their minds never met on this single word.  The outside legal team thinks it has been processing and reviewing all e-mails collected from live mailboxes, back-ups and .pst’s, the CEO believes costs were saved because only live mailbox data was addressed; and the techie feels proud that he followed directions by only collecting e-mails from .pst’s stored on shared network drives.


Truth or Consequences

It can be difficult enough to resolve the resulting squabbles and finger pointing.

But then you need to convince the other side that re-production is necessary due to an innocent mistake; and you have to maintain your credibility before the judge (crucial to effective lawyering).  In addition to everything else, the court often treats e-mails and back-ups in diametrically opposed ways.  E-mails are presumptively discoverable as long as they contain relevant information within a pertinent time frame.  But, at least in federal court, back-ups are presumptively not discoverable until the requesting party shows good cause.

Mixing up enterprise-wide data with email backups – or a similar snafu – during discovery can lead to inefficiency and spoliation sanctions.  It can also keep a client from understanding his/her options when analyzing the risks and benefits of various e-discovery decisions.  At each stage, making a mistake about what a word like “archive” means can seriously jeopardize effective communications in written discovery responses, meet-and-confer correspondence and status conferences at the courthouse.


Let’s Be Careful Out There

Ambiguity inheres in many a term or phrase.

In the throes of discovery, confusion can reign when lawyers don’t have someone to communicate with IT staff who are trying to get their day-job done and client leaders who are busy running their company.   The trick is to be as specific as possible when discussing ESI.  When in doubt about an acronym or a computer-technology process, ASK.

An effective dialogue can be pivotal for the ultimate success of your navigation of the e-discovery universe — and the lawsuit as a whole.


A prior version of this article was published in the May 2010 issue of California Lawyer.


TO LEARN MORE:

See the eDiscovery Terminology Glossary (.pdf) compiled and maintained by the author.

See also this excellent Technology-Assisted-Review Glossary created by Maura R. Grossman and Gordon V. Cormack and posted on the EDRM site.