Six years ago, I wrote about how facility with electronic discovery allows small litigation firms to have David v. Goliath results against large firms. https://www.spillaneplc.com/advances-in-e-discovery-allow-smaller-firms-to-successfully-litigate-cases-once-only-handled-by-their-larger-counterparts/ In 2021, if you or your team have not mastered discovery of electronically stored information (“ESI”), you are not in the game.
Here are some tips for bringing your electronic discovery skills up to date.
- Consult with your technologist on production demands. Parties may specify the way they want ESI produced. Cal. Civ. Proc. Code § 2031.030(a)(2); FRCP Rule 34(b)(1)(C). Share your draft production requests with your technologist, or better yet, have a stock paragraph in your form file. I now demand production in the “load file” format employed by electronic discovery programs such as Relativity, and demand inclusion of metadata that allows electronic documents to be quickly searched and sorted, with additional instructions for electronic documents that render poorly in this format.
- Don’t stand for noncompliant production. Some parties fail to object to your ESI instructions, in which case they waived their objections. Cal. Civ. Proc. Code § 2031.280(c); FRCP Rule 34(b)(2)(D). Half the time, whether the other side objects, the production is non-compliant. Clients print and scan their emails, which strips the metadata and often loses attachments, rendering a data rich document into a static image. Clients print, “screen grab” or take pictures of texts and electronic messages, which suffers the same flaws. Trying to find exhibits in a terabyte of static images is Back to the Future, when associates billed clients a jillion hours to ruffle through bankers’ boxes. Emails and messages need to be extracted electronically. Smart phones need to be surrendered so texts and messages can be properly extracted. Messages or posts on the Internet need extraction with metadata intact. Write the conference of counsel letter, press for compliance, and move for relief. With the other side’s data rich documents in a discovery program, you will be finding exhibits in minutes, not days.
- Question your witnesses about communication channels. It should now be stock in every deposition to ask witnesses how they communicate with the world. Get all the email accounts. Ask if they text and find out which phone they use. Do they have documents backed upon onto the cloud? Do they post on Facebook, LinkedIn or other social media? Do they message on WhatsApp, Viber, Slack or the like? These questions may identify ESI overlooked in the other side’s document production. Also, these lines of questioning may help authenticate exhibits. Ask the witness to confirm that they send and receive emails with their addresses, the phone number(s) they use to text and the screen or account names for the other media through which they communicate.
- Look at the extraction output. Look at the data extraction and gauge whether it makes an eye-catching exhibit at trial. This subject can get very technical, but I have seen text extractions that recreate a conversation the way it would be seen on one’s phone, with color and left/right justification to help show who is speaking, to a technically thorough and complete printout of texts that do not recreate conversations and lack color or justification. The jury will want to look at a text or message conversation just the way they appear on phones or computers.
- Think about authentication. To admit an exhibit at trial, one must either have a pretrial admission as to authenticity, or a witness who can authenticate the document with personal knowledge. Hopefully your witness has already admitted that they send and receive communications with the account or number reflected on your exhibit. If the other side won’t cop to an email or text, hopefully your witness can confirm the exhibit is an authentic copy of a message received. Be careful with screen captures of public posts. If you or someone in your firm created the screen capture and the other side won’t admit authenticity, you or your colleague might need to take the stand. One court has ruled that a static capture of a media post that strips the metadata is not authentic. I have an investigator make screen captures in technically adept fashion, so I have the document in correct format, and I am not the witness to authenticate the document at trial.
- Think about admissibility. Too many lawyers think that if the parties are in business and they have documents, everything comes into evidence as a business record. Not so. I think of business records as more like a ledger of business transactions kept contemporaneously, not everything everyone says during their business day. Cal. Ev. Code § 1271. The other side’s messages may come in as party admissions, and a complete conversation could come in under the doctrine of completeness. However, your client’s own communications, and third-party communications, are hearsay in search of an exception. Brush up on your Evidence Code before trial and make sure you have your argument ready if the judge questions admissibility.