In almost any lawsuit, after the initial pleadings are filed, and before the trial, the parties engage in an extended period known as “discovery,” where each side demands and receives information about the other side and its case. In business cases parties typically ask for all of the contracts, communications and financial information that pertain to the issues in dispute. Businesses are generally quite reluctant to share internal business information with any third party, especially a litigation opponent. However, the law favors broad pretrial disclosure of information that has any potential relevance, and thus the volume of information exchanged in the discovery process could be great.
When I started practice, discovery demands resulted in delivery of boxes – sometimes many – filled with printed and numbered pages. In most business cases there are only a few dozen exhibits that one could expect a jury to absorb in a typical trial. Sifting through the boxes to find these jewels could be a very labor-intensive, time consuming and therefore expensive process. This was an area where larger companies and law firms could swamp their smaller competitors.
Today, most business information exists, and can therefore be produced, in electronic format. This difference can bring about David versus Goliath results in the discovery process. Lawyers who can successfully demand, receive, store, analyze and distill electronic discovery have a huge advantage, one that greatly levels the playing field.
It is critical that practitioners know, and utilize, available rules regarding electronic discovery. The federal and state courts in which I practice all allow a party to demand discovery of “electronically stored information,” (“ESI”) including the “form or forms in which [ESI] is to be produced.” Cal. Civ. Proc. Code § 2031.030(a)(2); FRCP Rule 34(b)(1)(C). Since most business information is now produced by computers, most discovery demands should call for production of ESI, even if a counterpart to the information also exists on paper. There are popular commercial software programs which can enable receipt, storage and retrieval of ESI. Increasingly litigation support vendors are available to consult in this area. Practitioners need to know the ESI form(s) which will be compatible with the program(s) to be employed, and demand production of ESI in such form(s). If the responding party objects to the demanded form(s), that objection must be stated in the response, at the risk of being waived. Cal. Civ. Proc. Code § 2031.280(c); FRCP Rule 34(b)(2)(D).
My discovery demands contain a simple instruction – ESI should be produced in native format. I have received demands containing detailed instructions concerning the form of ESI to be produced, such as conversion of files into specified formats and separation of documents by load files. All such instructions should be tailored to the software employed by the demanding firm.
Receipt of ESI in compatible formats can result in exponential increases in one’s ability to find crucial information. For example, emails produced in native format should be instantly sortable by fields including sender, recipient, date and subject line, allowing one to hone in on communications among key personnel, at key times and on key subjects. Information contained within electronic documents may be searchable through user friendly utilities. In this fashion, trial lawyers can be freed from the tedious process of employing personnel to review every page of printed information, and instead devote precious and finite resources to searches for high impact information.
Too many practitioners, being “electronically challenged,” or dare I say dating back to pre-computing eras, fail to take advantage of these field-leveling tools, both by failing to include ESI instructions in discovery demands and by allowing opponents to “dumb down” the information produced, i.e. strip ESI of searchable information. Common “dumbing” techniques include converting ESI from native to “static” format, popularly Adobe .pdf files, essentially a picture of a document. Some companies undertake the laborious process of printing ESI and then running the printed pages through a scanning machine. These techniques method permits the space-saving convenience of electronic production but strips the document of searchable information. Such results may be avoided through proper ESI demands and, where necessary, court motions to enforce compliance.
Proper electronic discovery techniques are indispensable for small companies and firms engaged in “bet the company” litigation.