Electronic Discovery and Evidence

Journal Issue

Nov 2005

Column Name

Citation

ABI Journal, Vol. XXIV, No. 9, p. 34, November 2005

Journal HTML Content

It should be no surprise that electronic
discovery has already changed, in a profound way, the litigation
landscape. Just like qualifying to enter the Boston Marathon is one
thing, winning the race is an entirely different story. Electronic
Discovery and Evidence by Michael R. Arkfeld and published by Law
Partner Publishing will help the attorney prepare and understand some of
the basics of electronic discovery for the 21st Century.

The book has very little to do with bankruptcy cases, but that should
not be a deterrent to understanding and appreciating the changing world
of electronic discovery. What makes this book necessary is that it's not
about the Sedona Principles, or the proposed changes to the Federal
Rules of Civil Procedure (FRCP) (for electronic discovery) that are
perhaps destined to become final before the end of 2006; rather, this is
a good book on electronic discovery.

Speaking from a technical perspective on electronic discovery and
recovery of digital electronic information in bankruptcy litigation, the
book is somewhat light, and bankruptcy attorneys will subsequently need
to augment and focus on current business technologies. This reviewer has
consistently found that degrees of separation resulting from changes in
technology that occur every six months, so don't wait, because an
electronic form of locust has already landed.

That being said, this book has more than 400 pages consisting of
eight chapters, a glossary of terms and an alphabetical index by
subject, and is a good entrée into the digital electronic world
of litigation. Copyrighted in 2003, you are going to find the
need to read this more than once. Indeed, when professionals fail
to realize that the devil is generally found in the details of
electronic discovery, it does look easy for those who are knowledgeable.

Chapter 7 provides insight on obtaining electronic data from third
parties using the subpoena powers found in FRCP 45, and has some good
coverage of the attorney/ client privilege and litigation-support
databases. While the alphabetical index failed to show the reference for
FRCP 36, Request for Admissions, chapter 7 has indeed done it right.
Inasmuch as use of request for admissions in electronic discovery can be
every bit as crucial as the electronic data found on hard disk
drives, the author states in chapter 7:

<blockquote>
Unfortunately, many attorneys do not understand the purpose of the rule
and fail to use it to their advantage...request for admissions can be
effectively used to establish genuineness of computer data such as
e-mail, word processing documents and other electronic information.
</blockquote>

Query: How long will it take before FRCP 36 is required (under Local
Bankruptcy Rules) for electronic evidence in adversary proceedings? The
key is to be knowledgeable and succinct in drafting those admissions
regarding the electronic evidence, in what is perhaps one of the
best-kept secrets that remains untouched by the proposed changes to the
FRCP.

Coverage of "Discovery and Production Process," found in chapter 6,
is again good, and the author provides insight to those not familiar
with electronic discovery:

<blockquote>
The stated purpose of discovery underlying FRCP 1 "is to secure just,
speedy and inexpensive determination of every action." If the opposing
party engages in stonewalling and other delaying tactics, then discovery
is inconsistent with the underlying principle of Rule 1. The purpose of
discovery is not to obtain all the data you can, but rather focus on the
relevant, critical information that will assist in resolving the
dispute. The parties should keep their attention focused on not the
universe of relevant information, but instead the relevant information
that pertains to claims of defenses of their case.
</blockquote>

The electronic discovery litmus test for this book is found in
chapter 6 on the Zubulake case.<a href="#2" name="2a">2</a> Attorneys have focused on the seven
rulings of Zubulake, and we find it has become a cornerstone in
electronic discovery cases. The author made sure to include what
counts in Zubulake, as found in what the court stated on May 13,
2003:

<blockquote>
Nonetheless, UBS argues that Zubulake is not entitled to any further
discovery because it already produced all responsive documents—to
wit, the 100 pages of e-mails. This argument is unpersuasive for two
reasons. First, because of the way that UBS backs up its e-mail
files, it clearly could not have searched all of its e-mails without
restoring the 94 backup tapes (which UBS admits that is has not done).
UBS therefore cannot represent that it has produced all responsive
e-mails. Second, Zubulake herself has produced more than 450
pages of relevant e-mails, including e-mails that would have been
responsive to her discovery requests but were never produced by UBS.
These two factors strongly suggest that there are e-mails that Zubulake
has not received that reside on UBS's backup media.
</blockquote>

Chapter 6 will continue to hold the interest of readers as it
explains the electronic-production process and the production response
plan, right along with the need for the attorney to understand
the client's information technology systems in order to avoid sanctions;
this is followed with some good practice pointers for preservation of
evidence and reported cases:

<blockquote>
Producing electronic information involves many of the same legal
principles, strategies and understanding as in requesting electronic
information. It will require you to understand how computers work [and]
legal principles that affect production as well as how information
technologies are used in your client's personal or business life. You
will need to provide proactive advice to your client as to the
preservation and production of electronic information, as well as
document retention policies.

A practitioner responding to discovery requests must understand how
electronic data is generated and maintained in order to comply with
discovery requests and effectively oppose objectionable requests. This
is especially true because the costs associated with electronic
production, and the stakes in successfully defending against such
discovery, frequently are higher. To effectively defend against
electronic discovery, a practitioner should be familiar with the scope
and form of production, privileged and spoliation principles.
</blockquote>

You will discover that even though your clients feel that they have
conducted their business in an open, honest and ethical manner, it can
be expensive to defend against discovery requests for electronic
information. Also, since e-mail and other forms of electronic
information are often created in an informal manner, many times this
information can contain derogatory information. Whether it is taken out
of context or is the result of a disgruntled employee, it can be
extremely damaging to your case when it is shown in the courtroom.

Attorneys and others involved in litigation and contemplating future
litigation can benefit from Electronic Discovery and Evidence. A
word of caution, though: Electronic discovery is so unlike hard-copy
production that if you have not experienced the long-term effects of
"once bitten, twice shy" inflicted by the electronic discovery locust,
you will, unless progressive steps are taken to understand the changing
digital electronic world.

The technical aspects of this book are generally found in Chapters 1,
2 and 3, "Electronic Information in Litigation," "Creation and Storage
of Electronic Information" and "Structure and Type of Electronic
Information," respectively, and are technical, so be prepared to read
and ponder the implications for clients and bankruptcy law practice if
these measures are not used to obtain electronic evidence.

<hr>
<h3>Footnotes</h3>

<a name="1">1</a> Jack Seward is a
contributing editor for Norton Bankruptcy Law and Practice, 2d by
Thompson West, and the ABI Journal's "Straight & Narrow"
column. He has written and spoken extensively on the subject of
protecting and retrieving digital electronic information. A digital
forensic accounting technologist in New York and veteran of many years
of forensic accounting and electronic data sleuthing, he provides
litigation support, including e-discovery for bankruptcy, insolvency,
judgment enforcement, and the discovery and recovery using computer
forensics. He may be contacted at (917) 450-9328 and by fax at (212)
656-1486. <a href="#1a">Return to article</a>

<a name="2">2</a> Zubulake v. UBS
Warburg LLC, CIV.02-1243, 2003 WL 21087884 at *6 (S.D.N.Y. May 13,
2003). <a href="#2a">Return to article</a>

Journal Authors

Jack Seward

Journal Date

Tuesday, November 1, 2005 - 12:00

Bankruptcy Rule

2005