Electronic discovery is the name of the game these days as more and more people and companies store their stuff in the form of bytes, not pages. That means that lawyers need to know how electronic discovery works (and in some places, that’s an ethical requirement).
Even so, nobody’s perfect, and replying to requests for ESI can cause headaches. When you’re responding to an ESI request, take caution to avoid these three mistakes.
1. Not Knowing What ESI Means
Yes, yes, “ESI” means “electronically stored information,” but a request for “all electronically stored information” on such and such a topic during such and such a time is way too broad. You should respond by asking for a limit on the parameters of the ESI requested; for example, is it emails? Stored documents? Who were those emails from? Who were they to? Who authored those documents? When were they created? And when were those emails sent? Do you want stuff in backup, too?
Don’t look at an overbroad ESI request as an unreasonable burden. Instead, place the onus on your opponent to narrow down what he or she wants. This, of course, requires knowing what things can qualify as ESI, which requires you to know about electronic discovery.
2. Not Redacting Metadata
Depending on what state you’re in, you may or may not have an affirmative duty to ensure that metadata — the “data about data” hidden in most modern files — is scrubbed from files submitted for discovery. Metadata can contain a lot of information you don’t intend for the other side to see, including attorney work product or confidential attorney/client information.
Even worse, some states don’t have clawback provisions for accidentally disclosed metadata, under the theory that it’s the disclosing lawyer’s job to find the metadata. Again, all of this depends on you knowing what metadata is and how to remove it from a file.
Seeing a pattern yet?
3. Not Understanding the Client’s Data Architecture
An attorney might know about ESI, but not about how the client’s infrastructure operates. Most of the time, the client’s legal liaison with a corporation (and it’s often a corporation when we’re getting into nitty-gritty ESI problems) doesn’t know, either. It’s time to either hire some professionals, or, if you know what you’re doing, go talk to the client’s IT people.
Discoverable data isn’t limited just to what’s on an email server somewhere. It also comes in the form of what’s on employees’ computers and company-issued devices like smart phones and tablets. It could be backup tapes or data physically stored in another country that could be subject to an international treaty. Heck, it could even be chats and instant messages.
In short, responding to ESI requests means knowing what you’re doing in a way that wasn’t the case when paper was all we dealt in.