The art of e-discovery

There’s a new buzzword and acronym to go with it, and if you haven’t heard of ESI (Electronically Stored Information) yet, you’d best get up to speed.

ESI is born of changes brought about by the Federal Rules for Civil Procedure (FRCP), which went into effect on Dec. 1, 2006. I’ve written about FRCP several times, including an in-depth article on FRCP preparedness.

The problem is, ESI is more a term of art than a deliberately defined set of rules.

Ralph Losey, an attorney specializing in e-discovery at law firm Akerman Senterfitt, tells me ESI is not defined on purpose in order to cover future technologies that haven’t been invented yet.

“We only change these rules every 50 year or so, so they deliberately make things vague,” Losey says.

So vague in fact that a judge in Columbia Pictures Industries v. Bunnell ruled that content stored in RAM falls under the definition of ESI and is thus discoverable under FRCP.

When you probe a bit deeper into this case, it turns out the defense tried to get cute, Losey says. The defendant, TorrentSpy, was accused of being part of a conspiracy to allow users in a peer-to-peer network to use its site to find content and then violate copyrights by downloading that content. TorrentSpy did not offer the content, rather they were the search engine used to find it.

To prove its case, the plantiff had to show that TorrentSpy sent users to these sites. To do that the plaintiff wanted the log server information.

“Without the logs you cannot show a conspiracy to violate copyrights,” Losey says.

The defense contended that saving the logs could not be done. But TorrentSpy didn’t fool the court. Losey blamed the inexpert expert IT witnesses the defense put on the stand for angering the judge.

“She [the judge] was smarter than everybody in the IT department,” Losey told me. The defense made it look like retrieving the logs was impossible, and that simply is not true.

Since Dec. 1, there have been thousands of motions pertaining to e-discovery, so we can expect that definitions of what is and is not discoverable will be determined over time by case law.

You can find a complete discussion of e-discovery cases on Losey’s blog. In two particular cases, an employer requested to obtain a mirror image of an employee’s home computer. One judge, in Hedenburg v. Aramark American Food Services, ruled against the employer, saying it was just a fishing expedition; while the other, in Ameriwood v. Liberman, ruled in favor of the employer, saying the content on the home computer was relevant to the case.

Losey believes the new FRCP rules actually encourage inefficiency rather than efficiency in document archiving. He says this because in some court rulings if the defendant can show that the data is not easily accessible and that discovery will cost an inordinate amount of money there’s a good chance that the judge might agree.

However, this can depend on how good your expert witnesses are. As I said in the case of Columbia v. Bunnel, it was the expert witnesses that angered the judge and helped determine her ruling on RAM.

The point is, even though the lack of specific rules may encourage inefficiency, Losey says it is probably too high a risk.

I invited Matt Smith, president of LiveOffice, a company that provides tools for archiving and retrieving Web content, e-mail, IMs, voice mail, and other ESI, to add his comments on the lack of definitive rules for e-discovery.

Smith says that, whereas an attorney might have advised a client not to archive content, with e-mail and other electronic data, there is both a sender and a receiver. That makes all the difference. Because of this, companies will be best served by being efficient in how they save content despite any hard and fast rules on what to save and not save and for how long.

“You need to have all the information you can in order to avoid shooting yourself in the foot,” Smith says.

However, in some cases, discovery rules are quantified, such as in the financial services industry. Here the SEC requires that electronic documents be held for three to five years. If deemed relevant to the case, documents created in past three years must be retrievable within 48 hours.

That’s what LiveOffice does, and the secret is not to put in a system on the cheap, Smith says. Just because Smith has a vested interest in saying that doesn’t mean he isn’t right. One must-have feature is real-time indexing, which can produce documents in short order rather than trying to field requests for e-mails from 20 different employees from three years ago and having to reindex the entire archive for each person.

Finally, I asked Losey, What is the biggest mistake companies make when devising their e-discovery strategy?

“In-house lawyers and IT people never have lunch together,” Losey answered.

Not only do they often not understand each other, they often don’t like each other. This is not good. Losey says they need to be close partners because each has to understand the needs of the other.

The FRCP may not be revised for another 50 years, but it looks like the courts and companies will need that time to figure it all out. Or as one office wag at InfoWorld suggested to me, “Why don’t companies just cc: the Justice Department on every e-mail and get it over with.”