Whether or not you are on Facebook or are a devoted user of social media apps, as a litigator you have to be, at the very least, aware of how technology affects discovery and can potentially lead to a gold mine of information. Moreover, some knowledge of how technology affects litigation is essentially mandatory now. Comment 8 to Rule 1.1 of ABA Model Rule regarding competent representation requires that lawyers “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …”
So what should a tech-savvy attorney do when suing a party which stores emails, documents and other data (“electronically stored information” or “ESI”) on computer databases? First, send a litigation hold notice to opposing counsel as quickly as possible, instructing your opponent to have his or her client suspend standard destruction procedures. You should also circulate a litigation hold notice to your client, in order to guard against potential allegations of spoliation.
Next, you should draft and serve production requests seeking ESI such as emails, internet-related data, website and browser history, backup and/or archive media, hard drives and removal drives, and CD-ROMS and DVD-ROMS. As in other cases involving the production of potentially competitive sensitive or confidential information, you should negotiate a comprehensive protective order with opposing counsel before making production. It is also a good idea to insist on a clawback provision in anticipation of the problem of inadvertent document production.
While your client likely has a very fine IT group onsite, you probably should not rely on them exclusively to preserve ESI and make production. It is important to engage an ESI expert to handle discovery and perhaps conduct a forensic examination of the opposing party’s ESI production. The ESI expert you retain must possess a professional investigator license under M.C.L. § 338.822, which is a prerequisite to secure evidence and to engage in computer forensics to be used as evidence before a court.
In cases where insufficient measures were taken to preserve ESI or where some ESI has been intentionally or inadvertently destroyed before and after litigation commences, the specter of spoliation can rear its ugly head. As many of us have ruefully learned, a client’s acts of spoliation can have a very adverse influence on how the judge and the jury will view your client, even if the merits of your opponent’s case are relatively weak. While spoliation is not an independent cause of action in Michigan, judicial sanctions can be quite severe, including an adverse presumption or an adverse inference at trial regarding the destroyed ESI.
Since it is not uncommon for some documents that normally would be considered to be privileged to be lumped in as part of massive document production, you may also have to deal with questions of privilege waiver. The arguments will center on whether the production of the privileged documents was inadvertent, what measures were taken to avoid it and which party will suffer the most prejudice if the documents are either clawed back or produced.
Finally, do not forget the potential treasure trove of ESI held by non-parties regarding the parties and key witnesses. While you can look up their Facebook pages and Twitter accounts and try subpoenaing them and other social media providers for information, Facebook and Twitter have usually been successful in invoking the Stored Communications Act, 18 U.S.C. 2701, to withhold user content on grounds of privacy. Instead, consider trying to have the judge compel the party or the witness to authorize the release of Facebook and Twitter information. On the other hand, Google may be willing to produce some log user activities, although that information is only saved for a limited period of time. Scouring an opponent’s website can also yield some interesting ammunition. If you know the website’s domain host, there are even ways available to find old website pages that no longer appear on the internet.
There is a brave new ESI world out there, but you can be prepared to deal with its pitfalls or to discover a treasure trove of information.
For more information regarding discover of electronically stored information, please contact Stephen McKenney directly at [email protected].
