For those who have been involved in formal litigation, you will recognize the term “discovery” as meaning the phase in a lawsuit where the parties attempt to gather as much factual information as possible from one another. One of the primary tools lawyers use to get at this factual information are written requests for information, called Interrogatories and Requests for Production of Documents. Before the proliferation of the electronic age we now find ourselves in, responding to Interrogatories and Requests for Production of Documents was relatively simple in terms of scope; e.g., the party upon which such written discovery requests were propounded was under a duty to make reasonable inquiry into the records in its possession, custody and control that may be responsive to the particular request. Short v. Marinas USA Ltd. P’ship, 78 Mass. App. Ct. 848, 853 (2011). Those “records” in a particular party’s possession, custody and control used to only include the paper documents that made their way into some sort of formal filing system, and fights over the breadth and potential privileges attaching to those paper documents to keep them from being “discovered” were the primary issues.
However, the term discovery is now spoken in conjunction with its “new” analogue, e-discovery (commonly referred to as “ESI” or Electronically Stored Information). It is no secret that computer use and e-commerce have grown at exponential rates in recent years. Increasingly, businesses create information electronically and never convert it to paper. In 2014, a study sponsored by EMC estimated that the total amount of data in existence by 2020 will surpass 44 zettabytes (44 trillion gigabytes), a figure representing enough data to fill 6.6 stacks of tablets stretching from the Earth to the Moon. See The 2014 Digital Universe Study: Rich Data and the Increasing Value of the Internet of Things, available at http://www.emc.com/leadership/digital-universe/2014iview/executive-summary.htm. E-mail has supplanted the telephone message, the fax, the written letter, and even water-cooler conversation as the primary medium for business communications. Social media has grown from a peculiarity of college campus life to a ubiquitous form of marketing and customer service. Moreover, because digitally stored data takes up significantly less space than paper, information is increasingly being stored not in dusty document warehouses, but on tablets, laptops, smart phones, voicemail servers, personal digital assistants (PDAs), and backup servers. Increasingly, individuals and companies also are turning to “the cloud,” and no longer have direct physical access to the devices storing their data. See Cloud Computing Takes Off: Market Set to Boom as Migration Accelerates (2011 Morgan Stanley Blue Paper), available at http://www.academia.edu/5233979/Cloud_Computing_Takes_ Off_Blue_Paper_on_the_Impacts_of_the_Move_to_Cloud_Computing_Market_Set_to_Boom_as_Migration_Accelerates.
The growth of computer use and e-commerce has had a substantial impact on the discovery process and has created opportunities and traps that can influence the outcome of a case. The proverbial “smoking gun” e-mail may lay hidden on, for example, the hard drive of your adversary’s office network server but will remain there if neither you nor your adversary understands the law concerning its production or the technology needed to extract it. Similarly, you or your employees may be sitting on a powder keg of electronic documents that could exponentially increase your exposure, waiting only for the fuse of discovery to be lit. And while it may be easy to disregard e-discovery as some sort of high-tech industry problems, these scenarios are not limited to high-tech cases. Computer forensics issues can arise in cases involving seemingly low-tech subjects, such as the following: age discrimination, see Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985) (court refuses to shift cost of producing computer data to plaintiff in age discrimination suit); products liability, see Linnen v. A.H. Robins Co., 10 Mass. L. Rptr. 189 (Super. Ct. 1999) (sanctions entered against defendant in products liability suit for failing to preserve electronic data); and breach of contract, see Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. Dist. Ct. App. 1996) (plaintiff in breach of contract suit between plastic surgeons denied request to enter defendant’s premises and inspect computer system).
In light of these issues (and the many more arising out of e-discovery that will be addressed in this blog in the coming months), business owners/innovators need to be familiar with the law concerning electronic discovery, including the risks associated with maintaining electronic information and hidden traps related to its destruction. For this reason, it is imperative for business owners and innovators to work with a business litigation attorney experienced in handling ESI issues that commonly arise in the course of doing business.