Preservation, cost-shifting, social media discovery and e-discovery in criminal cases—these are just a few of the hot-button e-discovery issues faced by legal practitioners in 2011. But the top story from 2011 is the evolution of e-discovery. Gone are the days where parties could simply argue that email and its metadata were not patently discoverable. It is no longer acceptable to waste countless hours arguing over the tiff or native production format. Today, we are seeing legal teams and judges tackle more multi-faceted legal technology issues than ever before.
According to a recent Kroll Ontrack analysis of approximately 100 reported judicial opinions addressing e-discovery in 2011, it is easy to see the complexities judges, lawyers and litigation support professionals face on a daily basis.
Specifically, of the cases analyzed, the following statistics emerged:
- 42 percent of cases addressed sanctions (with the majority of these sanctions being issued for preservation and spoliation issues)
- 14 percent of cases addressed various procedural issues (such as searching protocol and cooperation)
- 13 percent of cases addressed various production considerations
- 12 percent of cases addressed privilege considerations and waivers
- 11 percent of cases addressed cost considerations
- 3 percent of cases addressed preservation and spoliation issues (but not sanctions)
- 2 percent of cases addressed discoverability and admissibility issues
- 1 percent of cases addressed computer forensics protocols and experts
Notably, issues surrounding cost-shifting and the taxation of e-discovery costs, discovery of data from social media websites and e-discovery in criminal cases emerged in 2011 as new themes in judicial opinions.
Social networks are playing a larger role in e-discovery
An increasing number of social media discovery cases underscore a core principle of discovery: Discovery is primarily about obtaining information relevant to a dispute—not the means by which it is communicated. In 2011, courts re-emphasized and expanded upon the discoverability of social networking information.
For example, in Zimmerman v. Weis Markets, the court held that even “private” portions of a Facebook profile were discoverable. The court agreed with the rationale in McMillen v. Hummingbird Speedway Inc. and cited Romano v. Steelcase, Inc., which held that an individual who voluntarily posts pictures and information on social websites does so with the intention of sharing, and thus cannot later claim any expectation of privacy, especially because the privacy policies of Facebook and MySpace disclose that any information posted may become publicly available at the user’s own risk.
Finding a reasonable likelihood that additional relevant information existed on the non-public portions, the court ordered the plaintiff to provide all passwords and user names to the defendant, and preserve all existing information.
More parties sought taxation of costs
There also have been an increased number of cases in 2011 addressing taxation of costs in e-discovery. In complex cases, converting file types to more-searchable forms, rearranging databases, and conducting keyword and privilege screens can increase efficiency and decrease future costs of production. While courts have appreciated the generosity of parties employing these steps, they have struggled defining which of these costs, if any, are taxable.
For example, the court in Promote Innovation LLC v. Roche Diagnostics Corp., found that several ESI management techniques were within the scope of taxable costs. In the qui tam action, the plaintiff objected to the defendant’s request for taxation of e-discovery costs pursuant to 28 U.S.C. § 1920, arguing the costs were not allowable. Noting that precedent supported the taxation of e-discovery costs under § 1920, and provided no exception for qui tam relators, the court granted the Bill of Costs in the amount of $10,040.09.
E-Discovery in criminal cases
In 2011, criminal courts also increasingly struggled with ESI issues. In United States v. Briggs, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011), the court applied Fed. R. Civ. P. 34(b) as authority when it ordered the government to reproduce call data from wiretaps in searchable native or PDF format, but noted at length the need for a permanent analogue in the rules of criminal procedure as electronically stored information will certainly become more prevalent in the criminal context over time. The court also expressed a hope that the Advisory Committee on Criminal Rules will address this issue at its earliest opportunity.
In sum, courts across the country did not settle on a unanimous viewpoint regarding these cutting-edge e-discovery concerns in 2011, but these are topics the Advisory Committee on Civil Rules are considering as they evaluate the need for amendments to the Federal Rules of Civil Procedure.
The bottom line: Given the maturation of technology, and the average litigant’s increased knowledge and awareness, today’s courts are facing more complex and intricate e-discovery challenges than ever before. Parties and counsel be advised—bring your A-game to e-discovery disputes in 2012.
