Dealing
with Discovery in the Too Much
Information Age†
Frank H. Gassler
I.
The advent of computers has revolutionized the way information is stored. For all practical purposes, society has become paperless. Fewer and fewer individuals and corporations store all of their records in drawers and file cabinets. Instead, millions of documents have been reduced to electronic bits, bundled into bytes, kilobytes and gigabytes, and stored on hard drives, servers, floppy discs, CD roms and DVDs. In fact, thousands of pages of information can be stored on similar devices that fit in the palm of a hand.
Information also may be
stored in the form of e-mails and voice mails which, even if deleted, may be
easily retrieved. Information can also
be shared using the internet, and transmitted to remote locations throughout
the world. Moreover, electronic data
generally can be read, reviewed, indexed, reformatted and manipulated in a
variety of ways. Among the unintended
results of this electronic information boom is the vast quantity of information
conceivably subject to a discovery request.
Using the Federal Rules of
Civil Procedure as a guide, Rule 26(b)(1) cuts a wide path. It enables parties to “obtain discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending litigation,” even if
the information sought is not admissible at trial.[1] However, while Rule 26(a)(1) specifically
addresses “documents, data compilations, and tangible things,” the Rule fails
to provide any special provisions for the discovery of documents or data stored
in electronic format.[2] Very little guidance is available in the
reported case law either. Generally,
discovery disputes are resolved in courts of general jurisdiction. The determinations of these courts are
largely interlocutory in nature and may not be subject to immediate appellate
review. Consequently, there are few
appellate decisions on point. The published opinions, primarily rendered by
judges presiding in the United States District Courts, demonstrate that
pre-trial discovery procedures for documents in data bases are often fashioned
on a case-by-case basis.
Notwithstanding these limitations, however, some basic rules appear to
have evolved.
The purpose of this article is not to discuss the
technical aspects of how electronic data can be created and stored. A complete discussion of such topics can be
found in Universal City Studios, Inc. v.
Reimerdes.[3] Nor is it the intent to discuss the
deficiencies in the Federal Rules with respect to electronic discovery.[4] Instead, the purpose of this article is to
suggest practical solutions to some very difficult problems and concerns
regarding the production of information stored as electronic data.
II.
Defining
the Problem
It is no longer uncommon that a request for production of
documents include some language requiring the responding party to produce
documents of any type or nature,
whether stored in hard copy or electronically.
Parties can also request information contained on e-mails and voice
mails. Moreover, a request might
encompass certain electronic data that was previously deleted, but may have
been stored inadvertently on backup discs, hard drives, servers or in other places. There is little doubt that the universe of
discoverable information may seem endless, and the preparation of a fully
compliant discovery response may seem totally unmanageable and unpractical, or
even impossible.
Federal Rule of Civil Procedure 34(a) allows a party to
request from any other party “writings, drawings, graphs, charts, photographs,
phone records, and other data compilations from which information can be
obtained, translated, if necessary, by the respondent through detection devices
into reasonably usable form.”[5] Courts have found that “[c]omputer data is
included in Rule 34’s description of documents.”[6] However, the notion that a party should be
required to produce information in computerized form is not new. For example, in Adams v. Dan River Mills, Inc.,[7]
the court ordered that defendant produce its current computerized master
pay-roll file and all computer print-outs for W-2 forms, despite the fact that
the plaintiff had access to computer print-outs bearing the same
information. Moreover, courts have
found that computerized data can include voice mail messages and files, e-mail
messages and files, data files, program files, temporary files, back-up files,
archival tapes, cache files, cookies and other electronically recorded
information.[8]
Under Rule 34(b), a
respondent is not only required to produce the requested documents and other
information, but also to “produce them as they are kept in the usual course of
business or . . . organize and label them to correspond with the categories of
the request.”[9] As a result, courts have required parties to
produce computerized documents in a form that was usable to other parties.[10] Furthermore, the Advisory Committee Notes
contained in the 1980 amendment to Rule 34 clearly indicate that the Committee
wanted to prevent parties from deliberately mixing critical documents with
others in the hope of obscuring their significance. Moreover, under Rule 33(d), wholesale dumping of documents is not
allowed.[11] In short, a response to a discovery request
must not only be complete; it also must assume a form that complies with the
Federal Rules.
With all of this in mind,
preparing a complete and accurate discovery response can be a monumental
task. Trial courts ordinarily will
permit evidentiary hearings to determine if the production of computer
information “is merely time-consuming and laborious (impracticable) or it is
impossible.”[12] However, in Bills v. Kennecott Corp., the court found that:
. . . certain propositions
will be applicable in virtually all cases, namely, that information stored in
computers should be as freely discoverable as information not stored in
computers, so parties requesting discovery should not be prejudiced thereby;
and the party responding is usually in the best and most economical position to
call up its own computer stored data.[13]
III.
With respect to discovery,
it is prescribed that “[u]nless the task of producing or answering is unusual,
undue or extraordinary, the general rule requires the entity answering or
producing the documents to bear that burden.”[14] The mere fact that compliance with discovery
would be costly or time consuming, especially if the problem is exacerbated by
the responding party’s own manner of keeping records, is not sufficient to
refuse compliance with discovery requests.[15] For example, in a situation where a bank
argued that it could not read its own records unless it went to the time and
expense of photocopying them from microfilm, the court held that the bank would
have to bear the expense of producing the documents for inspection.[16]
In another case, relying
upon the decision in Bills, a court
found that CIBA-Geigy Corporation should bear the estimated cost of $50,000 to
$70,000 to search over thirty million pages of e-mail data stored on its technical
back-up tapes pursuant to a document production request. Although the court conceded that the Manual for Complex Litigation[17]
offered some support for CIBA’s position, it ultimately found that “relevant
case law instructs that the mere fact that the production of computerized data
will result in substantial expense is not a sufficient justification for
imposing the cost of production on the requesting party.”[18] The court insisted on examining other
factors to determine if the effort was inordinate and excessive, including
“factors such as whether the relative expense and burden in obtaining the data
would be greater to the requesting party as compared to the responding party,
and whether the responding party will benefit to some degree in producing the data
in question.”[19] The court went on to note:
On
the one hand, it may seem unfair to force a party to bear the lofty expense
attendant to creating a special computer program for extracting data responsive
to a discovery request. On the other
hand, if a party chooses an electronic storage method, the necessity for a
retrieval program or method is an ordinary and foreseeable risk.[20]
B. Shifting the Costs
Typically, courts are
reluctant to shift costs since “[t]he normal and reasonable translation of
electronic data into a form usable by the discovering party should be the
ordinary and foreseeable burden of a respondent in the absence of a showing of
extraordinary hardship.”[21] However, courts are empowered to shift costs
between litigants upon a showing of “undue burden or expense.”[22]
The notion of cost shifting is not new, but the general
rule has followed the opposite. For
example, in In re Korean Airlines
Disaster of September 1, 1983,[23]
the court found that each party must finance its own lawsuit. In that case, such costs included
translating foreign language documents into English. A similar result obtained in Cook
v. Volkswagen of America, Inc.[24]
The United States Supreme Court issued an early decision
that discussed cost shifting in Oppenheimer
Fund, Inc. v. Sanders.[25] In that case certain class members sought to
require the defendant to bear the costs of identifying other class members by
causing defendant’s transfer agent to make available certain computer tapes
from which class members could be identified.
To provide such information, the agent needed to sort manually through
numerous records, keypunch up to 300,000 computer cards, and create a whole new
computer program. The class members
argued that the Fund had opposed redefining the class as well as the means for
providing notice; it noted as well that the cost was relatively insignificant
($16,000) in light of the Fund’s total assets ($500,000). Rejecting these arguments, the Supreme Court
determined that the Fund should direct the transfer agent to make the
information available, but that the members should bear the costs. Interestingly, the Court also observed that
the Fund should not have to bear the expense simply because the information was
stored on computer tapes rather than in less modern forms.
Despite the holding in Oppenheimer, courts still may shift discovery costs.[26] A distinction may be drawn between producing
data compilations for inspection or copying as compared with sorting or
analyzing that data. Should
“sophisticated electronic manipulation and analysis” become necessary, the
court might consider shifting the expense.[27]
In Sattar v. Motorola, Inc.,[28]
the plaintiff sought to compel the defendant to produce approximately 210,000
pages of “hard copy” e-mails at its own expense. The defendant had already produced the e-mails in the form of
four-inch tapes, but the plaintiff lacked the necessary equipment and software
to read the tapes. The circuit court
agreed with the district court that:
. . . a more reasonable
accommodation was some combination of downloading the data from the tapes to
conventional computer discs or a computer hard-drive, or loaning [the
plaintiff] a copy of the necessary software, or offering [the plaintiff]
on-site access to its own system. If
all of those options failed, the court ordered that the parties would each bear
half the cost of the copying.[29]
At times, a party might consider producing hard copies of
requested documents instead of electronically stored data either for
convenience or as a strategic move.
However, the law is unclear as to whether a party truly has that option.
Without reaching a final decision, the court in Anti-Monopoly, Inc. v. Hasbro, Inc.[30]
provided some insight into the balancing test that applies when determining
whether responding parties are required to produce electronic versions of
documents that already have been produced in hard copy. The court’s opinion is quite instructive. In Hasbro,
the defendant agreed to produce sales and discount data in various forms,
sorted by item, customer, year or month.
The data covered reports the defendant used in its normal course of
business. The defendant did not choose
to withhold electronic versions of its reports; rather, the reports no longer
existed in electronic form. The
plaintiff, however, had sought not only sales and discount data, but electronic
versions of all invoice and credit memos generated by the plaintiff over a
four-year period. As the court
noted: “The [plaintiff’s] burden of . .
. collecting all of these electronic invoices is substantial and certain: weeks
of programming and computer time to collect the invoices followed by
substantial attorney review time to ensure that they are responsive.”[31]
The court recognized that it
had insufficient information to determine whether the plaintiff truly needed
electronic invoices (in light of other available discovery), and whether
defendants should be required to create a program to collect that data. Therefore, the court requested that the
parties meet and confer to resolve their dispute. The court concluded that its eventual ruling might depend upon
the plaintiff’s willingness to bear the defendant’s cost in creating the
required program. The court also
questioned whether defendant’s reports were available electronically, or
whether it was possible to re-create those reports electronically by running a
computer program over the existing computerized business data. The Hasbro case is significant because it
demonstrates that trial courts possess alternatives beyond merely allocating
costs. Significantly, courts may require that parties meet specific
instructions in determining how to resolve evidentiary disputes.
Likewise, in Williams
v. Owens-Illinois, Inc.,[32]
the court found that the district judge did not abuse his discretion in
entering a pre-trial order denying appellant’s request to obtain certain
computer tapes. The employment
discrimination resolution was based on a determination that all information
contained on the computer tapes was included in wage cards that appellants had
already discovered. Although the court
conceded that using the cards “may be more time consuming, difficult and
expensive,” the appellants were not deprived of any data.[33]
In yet another discovery
dispute, the court refused to allow the plaintiff’s broad demand asking that
the defendant disclose its entire computerized system. The court reasoned:
The
mere possibility that a party might not produce all relevant, unprotected
documents, is not a sufficient basis for ordering such a party to disclose its
entire computerized system of information management. Nor should the possibility the lawyer could better frame his
discovery request serve as sufficient predicate for ordering disclosure of
proprietary information about a computer system. . . . At a minimum, counsel
who seek access to opponents’ information management systems should be required
to show that conventional discovery methods have failed to produce the
information they need to litigate their case.[34]
A contrary result obtained in National Union Electric Corp. v. Matsushita Electronic Industrial Co.[35] In that case the court ruled that
computerized data could be discovered even though paper copies of the same
information already had been produced.
The defendants conceded that they could replicate the data by having
clerical personnel manually create a data base, though the process was
estimated at two months and many thousands of dollars. In reaching its decision, the court first
discounted a work-product issue, noting that although the data base was
compiled under counsel’s direction, it contained no mental impressions,
conclusions, opinions, legal theories or trial strategy. Nor was the court
persuaded that plaintiff would be required to create a new electronic document
since a specialist could simply substitute instructions used to extract and
print the computer reports on paper with instructions to print the results in
computer-readable form. Had the expense
been more costly for the plaintiff, the court might have denied defendant’s
request or provided that the defendant pay the cost of creating the data base
and downloading the information.
A different rule might apply, however, if the data no
longer exists at all. In Torrington Co. v. Federal-Mogul Corp.,[36]
the court refused the plaintiff access to:
1) a computer tape or computer program instruction; 2) a computer tape
containing information from each data set processed by the computer program,
and 3) a hard copy for each file transmitted on tape. The plaintiff sought access under a judicial protective order,
but the court denied the plaintiff’s motion.
The court found that the data did not exist and that the defendant would
be required to create the computer tapes at a heavy burden and great expense.
It should be noted that if a
party does not produce records “as they are kept in the usual course of
business,” a court probably will require that party to label and organize its
documents in order to make them usable by the requesting party. This remedy was advanced in Bd. of Educ. of Evanston Township High
School v. Admiral Heating & Ventilating, Inc.[37]
The court there specifically determined that “[a] party who produces documents
for inspection shall produce them as they
are kept in the usual course of business or shall organize and label them
to correspond with the categories of the request.”[38]
Neither does Rule 33(d)
allow for the wholesale dumping of documents.
In T.N. Taube Corp. v. Marine
Midland Mortgage Corp.[39]
the court analyzed the defendant’s responses to plaintiff’s
Interrogatories. The responses were
dependent, in part, on defendant’s prior discovery response consisting of 789
unlabeled papers haphazardly stored in a cardboard box. Although the court refused to sanction the
defendant, it questioned whether the documents were maintained in this fashion
at defendant’s business. The court then ordered the defendant to respond to the
Interrogatories separately and to organize the documents in a manner consistent
with plaintiff’s specific requests. In the end, it may be substantially cheaper
to produce documents as they are ordinarily kept in electronic format, rather
than to print, organize and label them pursuant to court directive.
A. General Considerations
In light of the great quantity of information produced
under some document requests, the courts must make an effort to ensure that
privileged or confidential information is protected and that safeguard
restrictions are instituted to minimize potential harm to a party’s computer
system. For example, in Strasser v. Yalamanchi,[40]
two plastic surgeons were engaged in a contract dispute. The plaintiff sought
permission from a Florida state court to enter defendant’s computer system to
search for certain financial information which the defendant claimed to have
purged from the system. After the defendant’s objections to the search were
overruled, the defendant sought an interlocutory appeal by petitioning for writ
of certiorari. The district court of
appeal issued the writ, finding that the trial court had granted unrestricted
access without protecting privileged or confidential information, and without
instituting safeguards to minimize potential harm to the computer system. In its determination, the appellate court
provided instruction to the trial court:
If plaintiff can
present evidence to demonstrate the likelihood of retrieving purged
information, and if the trial court finds that there is no other less intrusive
manner to obtain the information, then the computer search might be
appropriate. In such an event, the
order must define parameters of time and scope, and must place sufficient
access restrictions to prevent compromising patient confidentiality and to
prevent harm to defendant’s computer and data bases. One alternative might be for defendant’s representative to
physically access the computer system in the presence of plaintiff’s
representative under an agreed-upon set of procedures to test plaintiff’s
theory that it is possible to retrieve this purged data.[41]
In a similar case, the Fifth Circuit Court of Appeals
determined that the district court had not abused its discretion in refusing to
grant plaintiff access to defendant’s hard drive.[42] Interestingly, the district court initially
had held a conference to establish a method for accessing the defendant’s hard drive. The plaintiff sought access to determine
when a particular document was created as opposed to being “auto dated” by the
computer. The trial court had indicated
that the “discovery would be allowed only if the protocol ensured that the hard
drive access would have a ‘minimal degree of intrusion time-wise and
interference-wise’ with [defendant’s] operations, and if it provided ‘adequate
assurances of confidentiality.’”[43] The plaintiff then sought to “mirror” the
defendant’s entire hard drive, and to take the “mirror copy” to its facility
for analysis.
The defendant responded with
a different protocol that included examination of the “mirror copy” by a technician
for the limited purpose of determining the creation date or modification date
of the relevant files. The defendant
also sought an order protecting the confidentiality of any information not
relating to the creation, modification or erasure of the particular files. After reviewing both protocols the district
court determined that “its earlier decision had been ‘ill-advised’ because it
would involve ‘a fishing expedition’ without any particularized likelihood of
discovering appropriate information, ‘while,’ at the same time, the process
involves substantial risks and costs.”[44] Under the circumstances, the Circuit Court
of Appeals concluded that the trial judge did not abuse his discretion in
reversing the decision to compel production.
B. Attorney / Client Communications and Work Product
An effort must be made as
well to protect attorney/client communications and work product. Although inadvertent disclosure of
privileged documents might not constitute a waiver,[45]
an inadvertent production of privileged material may, in some cases, waive the
privilege forever.[46] Therefore, it is imperative that the courts
indulge some measure to ensure that no privileged material is inadvertently
disclosed. Requiring counsel for the
responding party to examine every document contained in a data base before
disclosure might pose a solution, but that solution may not be practical. Alternatively, the court might appoint a
computer expert, as an officer of the court, to retrieve only those documents
that are relevant, responsive and non-privileged.
In Playboy
Enterprises, Inc. v. Welles,[47]
a magazine publisher sued a former “Playmate of the Year” for trademark
infringement. In the course of
discovery, Playboy requested access to Welles’s hard drive to recover e-mails
that she claimed to have deleted. Welles objected on the grounds that Playboy’s
request was defective. She asserted that information stored on her personal
computer should not be discoverable because her business would suffer financial
loss from the shutdown required to recover information from the hard
drive. When addressing these issues,
the court first determined that Playboy’s comprehensive request for the
“production of documents relating to documented communications between
Defendants, between Defendant and non-parties, and documents and communications
relating to financial, marketing, development, trademark, advertisement, and
promotional issues pertaining to Defendant’s web-site, as well as any documents
or communications relating to Plaintiff, the instant litigation, or any issues
raised therein” was not procedurally defective and was broad enough to
encompass production of the e-mail messages.[48] The court also acknowledged that since the
e-mails were deleted, the only means of retrieval would involve accessing the
hard drive of defendant’s computer.
The defendant Welles
responded that her computer was used for both business and personal
communications, but she was unable to cite any case law exempting
electronically stored data from discovery.
The court observed that, “[t]he only restriction in this discovery is
that the producing party may be protected against undue burden and expense
and/or invasion of privileged matter.”[49]
Addressing the issue of undue burden and expense, the court employed the
balancing test articulated in Federal Rule of Civil Procedure 26(b)(2),
deciding that Playboy’s need for the information outweighed any burden on the
defendant. The court then devised a
protocol that provided defendant’s counsel with “an opportunity to control and
review all of the recovered e-mails, and produce to Plaintiff only those
documents that are relevant, responsive and non-privileged.”[50] An outside expert was retained to act as an
officer of the court, producing a mirror image of the defendant’s hard drive
for the purpose of recovering the deleted e-mail messages. To the extent that the computer specialist
had access to privileged information, the court determined that no privilege
would be waived. It should be noted
that when implementing this protocol, the court requested the expert to prepare
a declaration addressing both the defendant’s and the court’s feasibility
concerns.
C.
Litigation Data Bases
Some courts have drawn a
distinction between data bases that are prepared at the request of counsel in connection
with litigation and those that are kept in the ordinary course of
business. For example, in Santiago v. Miles,[51]
a distinction was drawn between two classifications of computer-generated
printouts. One class of printouts was
prepared at the request of counsel; these were protected as “work
product.” The other class was prepared
in the ordinary course of business; these were not protected.[52]
A somewhat different result
obtained in Williams v. E.I. du Pont de
Nemours & Co.[53] In that
Title VII case, the defendant sought to recover a data base and related
computer code books created by the Equal Employment Opportunity Commission from
information discovered from the defendant.
The defendant had produced thirty years of employment records and
related documents for the Commission.
The Commission later converted the materials into computer-readable data
using an expert. The Commission developed the data base to prove the
defendant’s violation, using statistical evidence. The defendant in turn requested a copy of the computerized data
base, including “the codebook, all documents used in encoding the database,
documents relating to the programs used to create the data base, the user’s
manual and all print-outs generated through the use of the data base.”[54] The Commission admitted that while
computer-stored information is generally discoverable, discovery should not be
permitted in this case. The Commission
reasoned that: (1) the defendant’s request exceeded the scope of discovery as
permitted under the Federal Rules of Civil Procedure; (2) the request was
overly broad and burdensome, and (3) the information underlying the experts’
reports (namely the raw data) was in the defendant’s possession. The plaintiff also asserted that the
information sought was work product, and the defendant had failed to
demonstrate that the same information was not available elsewhere without undue
hardship.
The defendant responded,
arguing that: (1) the information was
essential for the effective cross-examination of the Commission’s expert; (2)
the data base had to be physically examined for accuracy; (3) the contents of
the data base needed to be fully understood in order to properly analyze the
data output, and (4) it would be time-consuming, duplicative and expensive to have
defendant’s clerical personnel create an identical data base manually. The court subsequently found that
defendant’s need to manually encode the massive documentation originally
provided to the Commission would constitute an “undue hardship” under Federal
Rule of Civil Procedure 26(b)(3). It
also agreed with the defendant that access to the code books and the user’s
manual was necessary for effective cross-examination. However, it determined that the defendant’s request for documents
regarding programs used to create the data base and print-outs generated
through use of those programs was overly broad. The court was concerned that such documentation might reveal
other methods of analysis outside the scope of the expert’s report. Finally, the court refused defendant’s
request that the Commission produce its copyrighted computer program.
VI.
Parties are expected to
respond candidly and completely to requests for electronic data. In a class action RICO suit, Bonilla v. Trebol Motors Corp.,[55]
the trial judge sanctioned defendants for their recalcitrance during discovery
by imposing attorneys’ fees. Specifically, one of the defendants was required
to identify the names and addresses of persons who purchased certain Volvo
automobiles. The court sought a list of
individuals and other relevant data for use in identifying class members. The defendant initially informed the court
that its computer was not equipped to generate such a list in the format sought
by plaintiffs. Later, the defendant
admitted that it could produce the report in the format requested. The court determined that defendant would
be fined $100,000 per day and its counsel $5,000 per day for every day of delay
in producing the information. The defendant
responded with printouts containing purchaser names, but the submission did not
take the proper form. Defendant had
claimed that its computer system was inoperative, preventing the merger of
multiple sources of information. The court responded with the following rebuke:
“[the defendant’s] initial response regarding the limitations of its computer
was unforthcoming -- it should have advised the Court immediately regarding the
kind of programming that was necessary and the amount of time it needed to produce
print-outs.”[56] These words illustrate that a discovery
response must not only be candid – it must be specifically candid.
B. Preserving Electronic Documents
Likewise, parties should be
careful to implement a suitable electronic document preservation program. Sanctions have followed as well for that
failure.[57]
VII.
Parties must
expect requests for electronically stored data. In that regard, counsel should meet with the client to determine
what information exists, where it is located, how it can be retrieved, and how
it can be protected against inadvertent destruction. Counsel should also determine whether the client has a document
retention program for electronically stored information that may auto delete some
documents. It is important to ascertain
whether deleted files still exist and whether they can be restored. The client should be asked as well whether
the computer system has been updated recently, and whether data stored on an
older system can still be accessed. In
addition, if no in-house computer specialist is available, it may be necessary
to hire an expert to work with the client and ensure that the information
supplied is accurate. This last
recommendation is critical because some clients are not fully aware of how
their own computer systems operate.
Furthermore, it may be necessary to determine whether the client uses
commercially available software to run programs, or whether the programs are
proprietary. Finally, counsel should
ascertain whether copies of the information are readily available, since a
court may require the client to produce all information within the client’s
control.[58]
Finally,
counsel should recognize that the client might incur great cost complying with
discovery requests. These costs should be discussed candidly with the client to
determine how they might be minimized.
B. Act Promptly
If a party
receives discovery requests directed at electronically stored information,
counsel should determine how much time it will take to gather the information
and frame a response. Counsel also
should decide whether to respond electronically or with hard copy. If the response will occur electronically,
will the client provide the software necessary to read it? If the response will issue in hard copy,
will the documents be produced as they are ordinarily kept in the course of the
client’s business, or will they be organized in useable fashion? Counsel must inform the requesting party how
the client plans to proceed. If a legitimate dispute exists, counsel should
immediately seek a protective order from the court rather than waiting until a
response is due.
C. Counsel’s Personal Review
Ordinarily,
counsel should personally review all of the information that the client intends
to produce. Unfortunately, with the
large volume of materials that can easily be stored on a computer, this may not
be possible. Assistance is available
from professional consultants who can help to organize documents and enter them
into data bases. If such assistance is
sought from an outside vendor, counsel should ensure that no privileges will be
waived. By organizing the client’s documents in a particular way, however,
counsel may be creating other discoverable documents (i.e., the data bases
themselves). Thus, counsel should
create a “privilege log” while reviewing the documents and prevent multiple
reviews of the same information.
D. Allocation of Costs
If appropriate,
the court should allocate the costs of responding to discovery. This is particularly true if the client
cannot simply provide the documents without first creating some type of new
data base.
E. Establish a Protocol
If the
discovering party wants to explore the client’s computer, counsel should
institute adequate safeguards. These
should:
1. protect
the confidentiality of the client’s information;
2. avoid
the disclosure of any privileged matter;
3. provide
for a quick return of any privileged information that may be disclosed
inadvertently, without waiving any privilege;
4. ensure
that the client’s computer system will not be damaged; and
5. keep
any intrusion to a minimum.
VII.
Conclusion
The parties
should expect to do what is reasonable based upon the particular case or
controversy. Frivolous objections to legitimate discovery requests should be
minimized. However, counsel should be
proactive. If a request is overly
broad, objection is appropriate. If the
same information can be secured by less intrusive and expensive means, a
protective order is the proper remedy.
To the extent possible, the parties should seek a solution while
avoiding obstructionism. The goal must be relevant discovery within reasonable
bounds.
ENDNOTES
† Submitted by the author on behalf of the FDCC Products
Liability and Toxic Tort & Environmental Law Sections.
[1] Fed. R. Civ. P. 26(b)(1)
(emphasis added).
[2] Fed. R. Civ. P. 26(b)(1).
[3] 111 F. Supp. 2d 294 (S.D.N.Y. 2000) (citing United States
v. Microsoft Corp., 84 F. Supp.2d 9 (D.D.C. 1999)).
[4] For a discussion of such deficiencies, see Hon. Shira A. Scheindlin &
Jeffrey Rabkin, Electronic Discovery in
Federal Civil Litigation: Is Rule 34 Up to the Task? 41 B.C.L.REV. 327 (2000).
[5] Fed. R. Civ. P. 34(a).
[6] Crown Life Ins. Co. v. Craig, 995 F. 2d 1376, 1383 (7th Cir.
1993).
[7] 54 F.R.D. 220 (W.D. Va. 1972).
[8] Kleiner v. Burns, 2000 WL 1909470 (D. Kan. Dec. 15, 2000).
[9] Fed. R. Civ. P.
34(b).
[10] See Bd. of Educ.
of Evanston Township High School v. Admiral Heating & Ventilating, Inc.,
104 F.R.D. 23 (N.D. Ill. 1984).
[11] T.N. Taube Corp. v. Marine Midline Mortgage Corp., 136
F.R.D. 449, 452 (W.D. N.C. 1991).
[12] Dunn v. Midwestern Indemnity, 88 F.R.D. 191, 198 (S.D. Ohio
1980).
[13] Bills v. Kennecott Corp., 108 F.R.D. 459, 463-64 (D. Utah
1985).
[14] Continental Illinois Nat’l Bank & Trust Co. v. Caton,
136 F.R.D. 682, 685 (D. Kan. 1991) (citing Jackson Jordan, Inc. v. Kyle Rys.
Inc., No. 87-1059 (D.Kan. Mar. 22, 1988)).
[15] Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73
(D.Mass. 1976).
[16] Delozier v. First Nat’l Bank of Gatlinburg, 109 F.R.D. 161
(E.D. Tenn. 1986).
[17] Illinois Judicial Conference, Study Committee on Complex
Litigation, Illinois Manual for Complex
Litigation (Rev. ed. 1994).
[18] In re Brand Name
Prescription Drugs Anti-Trust Litigation, 1995 WL 360526 *1 (N.D. Ill. June 15,
1995) (citing Bills v. Kennecott Corp., 108 F.R.D. 459, 464 (D. Utah 1985)).
[19] Id.
[20] Id. at *2.
[21] Daewoo Electronics Co. v. United States, 10 Ct. Int’l Trade
754, 650 F. Supp. 1003 (CIT 1986).
[22] See, e.g., Fed. R. Civ. P. 26 & 34; see also Sanders v. Levy, 558 F.2d 636,
639 (2d Cir. 1976).
[23] 103 F.R.D. 357 (D.D.C. 1984).
[24] 101 F.R.D. 92 (S.D.W.Va. 1984). Cf. Stapleton v.
Kawasaki Heavy Industries, Ltd., 69 F.R.D. 489 (N.D. Ga. 1975); In re Puerto Rico Electric Power
Authority, 687 F.2d 501 (1st Cir. 1982) (defendants were required to translate
documents from a foreign language to English at defendant’s expense).
[25] 437 U.S. 340 (1978).
[26] Compare Stapleton v. Kawasaki Heavy Industries, Ltd., 69
F.R.D. 489, 490 (N.D. Ga. 1975) (holding that “the cost of translating those
documents [is] a reasonable cost of transacting business in this country”);
with In re Puerto Rico Electric Power
Authority, 687 F.2d 501, 507 (1st Cir. 1982) (holding that “if discovery
requests threaten to impose ‘undue burden or expense’ upon a respondent, the
district courts are specifically empowered to . . . [require] the requesting
party to pay the expenses of production”).
[27] See also Sanders
v. Levy, 558 F.2d 636 n.7 (2d Cir.
1976).
[28] 138 F. 3d 1164 (7th Cir. 1998).
[29] Id. at 1171.
[30] 1995 WL 649934 (S.D.N.Y. Nov. 3, 1995).
[31] Id. at *3.
[32] 665 F.2d 918 (9th Cir. 1982).
[33] Id. at 933.
[34] Lawyers Title Ins. Corp. v. U.S. Fid. & Guar. Co.,
122 F.R.D. 567, 570 (N.D. Cal. 1988).
[35] 494 F. Supp. 1257 (D.C. Pa. 1980).
[36] 1992 WL 406992 (CIT 1992).
[37] See Bd. of Educ.
of Evanston Township High School v. Admiral Heating & Ventilating, Inc.,
104 F.R.D. 23 (N.D. Ill. 1984).
[38] Id. at 36
(emphasis added).
[39] 136 F.R.D. 449 (W.D.N.C. 1991).
[40] 669 So. 2d 1142 (Fla. Dist. Ct. App. 1996).
[41] Id. at 1145.
[42] Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir.
1996).
[43] Id. at 532.
[44] Id.
[45] See, e.g.,
Aramony v. United Way of Am., 969 F. Supp. 226, 235 (S.D.N.Y. 1997); Lois
Sportsware, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105-06
(S.D.N.Y. 1985).
[46] See S.E.C. v.
Cassano, 189 F.R.D. 83, 85 (S.D.N.Y. 1999).
[47] 60 F. Supp. 2d 1050 (S.D. Cal. 1999).
[48] Id. at 1052.
[49] Id. at 1053.
[50] Id. at 1054.
[51] 121 F.R.D. 636 (W.D.N.Y. 1988).
[52] See also Malone
v. Ford Motor Co., 1992 WL 885097 (Va. Cir. Ct. Dec. 31, 1992) (discussing a
situation where over 15,000 documents were produced at the plaintiff’s
request); In re Chrysler Motors Corp.
Overnight Evaluation Program Litig., 860 F.2d 844 (8th Cir. 1988) (noting that
defendant’s data base was work product, but the privilege had been waived).
[53] 119 F.R.D. 648 (W.D. Ky. 1987).
[54] Id. at 649.
[55] No. 92-1795JP, 1997 WL 178844 (D. P.R. March 27, 1997), rev’d in part, vacated in part and remanded,
150 F.3d 88 (1st Cir. 1998).
[56] Id. at *33.
[57] See, e.g., Danis
v. USN Communications, Inc., 2000 WL 1694325 (N.D. Ill. Oct. 23,
2000)(shareholder class action involved allegations regarding willful
destruction of hard copy, electronically stored documents and data).
[58] See, e.g., Bank
of N.Y. v. Meridien BIAO Bank Tanzania, Ltd., 171 F.R.D. 135 (S.D.N.Y. 1997);
Wardrip v. Hart, 934 F. Supp. 1282 (D. Kan. 1996).
(author’s bio)
Frank Gassler is a member of
the firm of Fowler White Boggs Banker, P.A., where he serves as the supervising
shareholder of the products liability practice group. He is engaged in civil trial practice, primarily defending
products liability, toxic tort, professional malpractice and commercial
claims. Mr. Gassler received his baccalaureate
degree, with honors, from Villanova University in 1973 and his juris doctor
from the Columbia University School of Law in 1976. He is licensed to practice
in Florida and has been admitted to all Florida federal district courts, the
Fifth and Eleventh Circuit Courts of Appeal, and the United States Supreme
Court. In 1985 he received his Board Certification in Civil Trial Law from the
State of Florida. Mr. Gassler is vice
chair of the Toxic Tort Committee and Environmental Law Section of the FDCC,
and vice chair of the Products Liability Committee of the ABA Litigation
Section. He is also a member of DRI,
the Florida Defense Lawyers Association and the Hillsborough County Bar
Association.