This is the third column in a series addressing the challenges and opportunities presented by litigating in forums with no e-discovery rules. Read parts one and two. This column considers strategies to penetrate your adversary’s veil of secrecy to ensure reasonably complete production of electronic documents.
What is the veil of secrecy? Consider the litigant who refuses to disclose when or how that party implemented a litigation hold, or where and by what methods the party is searching for responsive electronic documents. Instead, counsel asserts that her client’s sole obligation is to provide a boilerplate certificate of completeness at the end of document discovery and that any further inquiry is barred by the attorney-client privilege and work product doctrine. This veil of secrecy, unless penetrated, may prevent your company’s counsel from even initiating what, in the federal courts, typically would be an extensive discussion and negotiation of both sides’ e-discovery obligations.
Objections that the work product doctrine and attorney-client privilege foreclose inquiry into counsel’s methods of document collection still resonate with many trial judges, who are accustomed to relying on counsel’s and the client’s good faith as the sole guarantor of reasonably complete disclosures. In the absence of clear evidence that responsive documents have not been produced, the court may suspect such inquiries are at best unnecessary fishing expeditions. However, a broadly worded certificate of completeness can hide many e-discovery omissions, and in a forum with few well established standards for e-discovery, counsel may provide vague assurances of a reasonably complete search while still falling far short of what most counsel would recognize as best practices.
How can your company’s trial counsel penetrate this veil of secrecy? If opposing litigants always shared an equal desire for broad discovery, then this issue would arise rarely, because both sides would be eager to inquire about the scope and methods of preservation and collection. Such parity between litigants, of course, is the exception. Nonetheless, a carefully drafted letter inviting opposing counsel to meet and confer on specific topics of e-discovery case management is almost always the correct first step. Counsel accustomed to practice in the federal courts may respond simply out of habit, or they may recognize the wisdom of protecting their client from later claims of spoliation or other discovery abuses by early disclosure and agreement between counsel on the e-discovery ground rules for the case.
As the jurisprudence of harsh e-discovery sanctions begins to filter into the state courts, managing this risk may be a strong incentive for many counsel to participate voluntarily in an early e-discovery conference as a form of safe harbor against subsequent sanctions. Even if your counsel’s request for voluntary disclosure is rebuffed, this initial effort to meet and confer will be a prerequisite for bringing the dispute before the court in most jurisdictions.
Absent such cooperation, your company’s counsel must use indirect methods to test the completeness of the opposing party’s production and develop a factual record that demonstrates good cause to believe the production is not reasonably complete. One approach that is particularly well-suited for production of emails is to use sampling across multiple productions to determine the completeness of the adversary’s production. Emails that have been sent and received among multiple parties participating in discovery offer a relatively simple way to measure the completeness of each party’s production.
For example, in a typical business dispute, the plaintiff and defendant may have exchanged thousands of emails CC-ing multiple custodians for both parties on each email. Tracking the production of these emails by each party and, where productions are segregated by custodian, by each custodian within each party, can identify potential gaps in the production. Such analysis is relatively straightforward with any robust document review platform and underscores the importance of including custodian identifiers in production metadata and objecting to de-duping emails across custodians by the producing party.
Of course, this gap analysis is only an initial step. There may be entirely reasonable explanations for the gaps. For example, a departing executive’s email account may have been purged before your adversary was under any duty to preserve. However, forcing your company’s adversary to acknowledge these gaps and to offer some explanation is the critical first step in determining the actual scope of the adversary’s preservation and collection effort. Once the opposing party has admitted that there are gaps that require an explanation, then your company has won the key concession that will allow your counsel to delve even deeper to verify the proffered explanation.
This discussion may make some readers question why a records custodian or similar corporate representative deposition is not a viable alternative for directly obtaining these disclosures. In this author’s experience, the principal issue is the lingering uncertainty in many state courts about the scope of protection afforded by attorney-client privilege and work product doctrine and the perception that such inquiries are at best unwarranted and burdensome fishing expeditions.
In response to a notice of deposition that includes a long list of e-discovery related topics, your company’s adversary may seek a protective order limiting the scope of examination. Instead, a better approach may be to probe this topic at a fact witness’s deposition, where no prior notice of the topics for examination is required and where opposing counsel may be reluctant to give an instruction not to answer or to terminate the deposition. A corporate officer with significant personal involvement in the matters giving rise to litigation likely will arrive at his deposition with at least some personal knowledge of how his own files were collected and reviewed for production and may not have been prepared by his counsel to answer these questions at his deposition.
Once your company’s counsel have made a record from this officer’s deposition and the gap analysis of the adversary’s production as described above, then your company is in a strong position to press for full disclosure of the adversary’s methods and scope of document preservation and collection.
In short, when litigating in a forum where there is no well-established practice of voluntary disclosure of each party’s methods and scope of electronic document collection, the party who seeks such disclosures should first attempt to develop a factual record showing that the adversary’s production may be materially incomplete, and then use that factual record to compel more detailed disclosures.
Although this incremental approach may seem unduly burdensome to counsel who have become accustomed to e-discovery practice in the federal courts, state courts that have not yet embraced this model may still require a particularized showing of good cause before permitting such inquiries. Proceeding cautiously before bringing this issue before the court is the best way to avoid a rebuff from the bench that may foreclose any further inquiry.