• Businesses Beware: Discovery Missteps Could Cost You
  • March 24, 2009 | Author: Randal M. Whitlatch
  • Law Firm: Dinsmore & Shohl LLP - Pittsburgh Office
  • Litigation is something most businesses don't like to think about let alone plan for. However, a recent West Virginia Lawyer Disciplinary Board action suggests businesses - and their attorneys - may want to do just that, specifically in the context of electronic or e-discovery.

    Imagine being sued and ordered by a judge during discovery to explain what you have done to preserve all of your potentially relevant electronically stored information (ESI), including e-mail and metadata. Imagine being ordered to produce this information in a reasonably usable format to the party that has sued you. Now what do you do? Unless you are prepared for this moment, you may panic because failing to prepare could put you on the hook for hefty fines, cause you to lose your case outright, or put your lawyers (both in-house and outside) in danger of disciplinary action.

    For the uninformed, discovery occurs after a lawsuit has been filed and before trial. During discovery, parties to the litigation are entitled to ask for information from each other in order to build a body of evidence for trial. For example, a party may pose written questions to the other party, take depositions, or ask the other party for documents related to the case. Although some information is protected by certain privileges at law, like the attorney-client privilege, the scope of discovery is generally broad. Courts also have the inherent power to control discovery and can order the parties to provide certain information and may also protect parties from having to provide other information.

    E-discovery refers to discovery during which ESI is preserved, requested, and/or exchanged in litigation. ESI includes e-mails, web pages, word processing files, audio and video files, images, computer databases, and virtually anything that is stored on any sort of computing device. Computing devices include servers, desktops, laptops, cell phones, flash drives, PDAs, and MP3 players.

    ESI provides unique challenges in discovery. Unlike paper, ESI may change over time even without human intervention. Merely accessing or moving ESI can materially change it, and mundane computing tasks like booting up a computer or moving the location of a word processing file may destroy information that is material to ongoing litigation. The Federal Rules of Civil Procedure and many state courts have specific rules governing e-discovery that must be followed. Even without specific rules, courts may still issue heavy sanctions for failing to understand and address e-discovery, particularly when relevant ESI that should have been preserved has been altered or destroyed.

    So, remember that judge that might order you to explain what you have done to preserve all of your potentially relevant metadata? Metadata includes data about a file that is recorded by the computer to assist in storing or retrieving the file, including file designation, create and edit dates, authorship, track changes, and edit history. A single e-mail could have close to 1,200 metadata fields associated with it, including when the e-mail was sent, forwarded, received, opened, copied, and so on. Metadata is often irrelevant to litigation, but many times it is crucial. If you are in litigation, and asking yourself if you still have your metadata, it might be too late and sanctions could soon follow.

    If you don't think that it could happen here, a recent State Disciplinary Board Action suggests otherwise.

    On December 30, 2008, the West Virginia Lawyer Disciplinary Board filed a Statement of Charges against certain members of the West Virginia State Bar, alleging various violations of the Rules of Professional Conduct for alleged missteps during discovery.

    In the Statement of Charges filed on December 30, 2008, a lawyer defending a coal company client in a "black-lung" action allegedly violated several Rules of Professional Conduct by failing to obey several orders by an Administrative Law Judge to provide all medical records to the "black-lung" claimant and by allegedly only providing pieces of a medical report to the claimant that were beneficial to the coal company. In addition to naming the defense lawyer actively working on the case, the Statement of Charges also names the partner in the lawyer's law firm in charge of the lawyer's practice group.

    What is so striking about this recent development and the U.S. District Court's Order that referred the conduct to the Disciplinary Board in the first place are the implications that they could have in the ever-evolving world of e-discovery. The conduct alleged in the Statement of Charges could just as easily have occurred in any civil action in West Virginia state or federal court. Moreover, even though the documents involved were paper documents, they could just as easily have been electronically stored documents.

    Simply put, a similar investigation may result from unlawfully causing the alteration, destruction, or concealment of ESI having potential evidentiary value. Being prepared to handle the unique challenges associated with e-discovery will help to mitigate such a risk.

    So, how does one prepare to handle the unique challenges associated with e-discovery?

    One can simply manage ESI and e-discovery in a good-faith, systematic manner. Organizations, large and small, can adopt policies and programs that do just that. To be sure, any such policies should be implemented carefully, taking into account the business, regulatory, tax, litigation, and technological needs of the organization. Above all, such policies should likely include a reasonable legal hold procedure. Employees can then be trained and held accountable for implementing the policy. While every case is certainly different - and facts of a particular case may change the game - ESI and e-discovery can be managed systematically to at least decrease the chance of hefty civil fines, default judgment, or - perhaps even worse - a disciplinary action.