Electronic discovery: 2006 amendments to the Federal Rules of Civil Procedure.

Parties should also seek the help of forensic experts or e-discovery consultants. Although there are many attorneys who are technologically savvy, it is best to have a range of "e-discovery experts" available at the onset of discovery requests. The expert need not be an attorney, but should be aware of the interplay between case law, the FRCP, and other federal regulations. Hiring an expert, even when a firm has an in-house litigation support department, is good practice for a variety of reasons. First, forensic experts have the ability to make a mirror image of relevant data and preserve it intact without manipulating associated metadata, and they are better equipped to retrieve corrupted or deleted data. Second, experts have the expertise to maintain and properly document the chain of custody so that ESI can be authenticated if the data is used as evidence. Third, experts can save parties considerable cost by facilitating the collection and review process, and by programmatically limiting ESI to specific dates, custodians, and file formats. Lastly, an expert can testify in court regarding the techniques used to collect and preserve ESI, without creating a conflict of interest issue or having the party testify as its own expert. An attorney must keep in mind that ultimate responsibility for the preservation, collection and production of ESI is on counsel. Therefore, attorneys should research the expertise and reputation of potential experts or vendors in advance.

B. Have a Discovery Plan

Attorneys should have a discovery plan ready to implement as soon as litigation is anticipated or a case has been filed. An attorney should attempt to identify the claims and client personnel who may be involved in the dispute to gauge what types of ESI future discovery requests may include. At the same time an attorney should advise its client to suspend the deletion of emails, customer data, voice mails, and other potentially relevant ESI, as well as suspend the recycling of backup tapes. After identifying possibly relevant ESI and custodians, a litigation hold should be implemented. This will allow a client's information systems to resume its routine operation, but at the same time suspend deletion and begin the preservation of potentially relevant data.

A litigation hold letter with details of which aspects of the client's retention policy can resume and what data needs to be preserved should be circulated to board members, partners, management, information technology department and to the specific individuals whose data is relevant. The litigation hold letter should instruct IT or an e-discovery expert to make mirror images of all relevant network and computer hard drives and then store the images for safe keeping. An attorney will have the duty to oversee and monitor a client's compliance with preservation. (120) Therefore, regular reminders of the litigation hold should be circulated and an attorney must affirmatively confirm that a litigation hold is in place.

C. Prepare for the Rule 26(f) Meet and Confer

The Rule 26(f) meet-and-confer conference is a party's best opportunity to control the direction and cost of discovery. Therefore, attorneys should arrive at the conference prepared to discuss a variety of issues in order to avoid potential e-discovery problems. If an attorney is not capable of discussing the technicalities of e-discovery, a liaison with such expertise should also attend the conference.

Discussing preservation issues at this stage will make it less likely that a party will be sanctioned for failure to preserve ESI. Parties should exchange lists of relevant custodians along with a description of their title and responsibilities. Parties should also be ready to supply other parties with a detailed map of client's information systems, including the nature, scope and format of the systems in use, and names of the persons responsible for implementing the client's retention policy. With knowledge of other parties' information systems a discovery request can then clearly and specifically indicate the types of ESI a party seeks. This will limit the amount of ESI a party must retrieve and review.

The attorney should present a detailed explanation of the steps taken to preserve ESI. This will put other parties on notice of the steps taken to preserve data. If initial preservation steps are unsatisfactory, an agreement should be reached detailing how each party will segregate and preserve documents. Such an agreement will also help avoid future spoliation accusations.

A timeline for the production of documents should be established. First, parties should produce all accessible relevant ESI minus any privileged or protected documents. If more data is requested, parties should try to agree on who will bear the costs of producing inaccessible ESI. It may be helpful to allow the requesting party to take a "sneak and peek" of portions of the inaccessible data to determine if relevant ESI exists. This may save parties a substantial amount of time and cost since there is always a possibility that no relevant information exists.

Parties should agree on the methods to be used for the search of relevant data. The agreement should include a list of search parameters including names, keywords, dates, and types of files that will be used to limit the amount of relevant data needed to be reviewed. Parties should discuss the format of production. Specifics should include whether production will be delivered in native file format with metadata, or in the more traditional TIFF format with bibliographic database. Parties should keep in mind that producing ESI in native file format may be less costly, but will require more time consuming privilege review as the document's metadata and any other hidden data will be available to the requesting party. Parties should discuss whether ESI that is not kept in reasonably useable format should be converted to a useable format and whether the costs can be shared.

Lastly, it is imperative that parties discuss inadvertent disclosure of privileged or protected documents. As discussed earlier, case law is not consistent and the Amendments do not address the issue. Therefore, parties should make good faith agreements to follow the claw-back protocol set out in Rule 26(b)(5) and specify that inadvertent disclosure will not waive privilege. Parties should draft specific claw-back agreements to avoid nullification by courts. (121)

D. Getting ESI in to Evidence

The distinct characteristics of electronic documents also produces evidentiary problems. Perhaps the biggest issue relates to the admissibility of ESI into evidence. After spending perhaps an extraordinary amount of time and money to find the "smoking gun" electronic document, attorneys are still left with little guidance via case law or federal rules on how to get such data admitted into evidence. (122) Magistrate Judge Paul Grimm set out some guidelines on how get ESI admitted into evidence in federal courts. In Lorraine v. Markel (123), Judge Grimm dismissed both parties' motions for summary judgment because emails submitted by the parties as evidence were not properly authenticated. (124) The court pointed out that emails and other ESI pose evidentiary issues and that "counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence." (125) The court explained that although silent on electronic evidence, the Federal Rules of Evidence (FRE) are applicable to ESI. (126) However, because of the nature of ESI, authentication of ESI will require greater scrutiny by judges because it is often difficult to determine if the proposed ESI is the original copy, and whether the ESI has been materially modified since the beginning of discovery. (127)

The court explained that that as a starting point, attorneys should look at FRE 901(b) for examples of how to authenticate ESI. (128) FRE 901(b)(1) permits authentication by "testimony that that a matter is what it claims to be." (129) FRE 901(b)(1) would allow a court to consider the authenticity of ESI through the testimony of a person with specific knowledge of ESI proposed as evidence. (130) For example, a spreadsheet can be authenticated by a custodian testifying that he or she has personal knowledge of the process that created the record, or a printout of a webpage can be authenticated through the testimony or affidavit of the webmaster. (131) Electronically stored information may also be authenticated by comparing previously authenticated evidence that is similar to the proposed evidence. (132) "[R]ule [901(b)(3)] allows either expert opinion testimony to authenticate a questioned document by comparing it one known to be authentic, or by permitting the fact finder to do so." (133)

Markel notes that FRE 901(b)(4) is the most frequently used rule to authenticate ESI through the use of "appearance, content, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." (134) Emails or instant messages, for example, may be authenticated by looking at the address of the email, the nicknames used, the content of which a person may be familiar with, or through testimony that a party spoke about the content of the communication. (135)

Another method for authentication, under Rule 901(b)(4), is the use of hash marks. A hash mark is "[a] unique numerical identifier that can be assigned to a file.... [Hash marks are] so distinctive that the chances that any two data sets [having] the same hash value, no matter how similar they appear, is less than one in a billion." (136) Hash marks are inserted into the original ESI when they are created and therefore available if needed to authenticate.

Markel also noted that the most useful authentication rule is 901(b)(9). (137) This rule permits authentication of ESI by "describing a process or system used to produce a result and showing that the process or system produces an accurate result." (138) Parties can show the accuracy of process through expert testimony.

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