module three getting the data from the people who store it there are several formal ways to request discovery from other parties in litigation including subpoenas requests for admission requests for production of documents and depositions all forms of discovery are ways of moving documents and other data from the receiving party to the requesting party what modern technology has changed about the discovery process is the form in which the data is held and the means necessary to search and obtain relevant non-privileged data the legal system tried for some time to come to grips with the changing technology
from the late 1980s through the beginning of this century but it became clear that simple request for discovery were being frustrated by the vagaries of the search and storage technologies being adopted by the business and legal communities so a new set of evidentiary procedural and ethical rules were promulgated and adjusted to accommodate the technological needs of the requesting and responding parties and the courts this module will focus on those rules II discovered legal and ethical considerations first we'll look at ethical rules binding attorney behavior ethical rules are not laws and can vary from state to
state they are developed and put into effect by state bars in conjunction with state Supreme Court's violation of these ethical standards can form the basis of bar disciplinary actions court sanctions and malpractice lawsuits among other bad outcomes most state ethical rules are developed within the context of the American Bar Association's Model Rules of Professional Conduct as a set of model rules these ethical considerations are not binding in and of themselves but serve as a basis for States to write their own rules a discovery and law office technology in general bring up several ethical considerations for
lawyers keeping up with technology it's easy for legal professionals to make mistakes with technology these can include exposing private client information social media posts that bring their professionalism into question not properly vetting third party storage companies and using the wrong key discovery search technology although the number keeps increasing lawyers are duty-bound in the ethical rules of only about half the states to keep up with technology to the extent it applies to the law office on issues like security privacy and the ability to conduct a discovery responding fully to discovery requests lawyers are duty-bound under rules
of legal ethics to respond to discovery requests fully and completely by not hiding any potential discovery or allowing their clients to do so producing all requested documents when possible and not overestimating the cost of a discovery in their proportionality arguments this is particularly applicable to technology assisted review which is covered later in this module clients documents privacy confidentiality and security another ethical issue for attorneys concerned storing ediscovery results in the cloud lawyers are responsible for the security of all documents related to their clients and storing those in the cloud implicates both security and privacy issues
there are legal technology writers who will tell you that there is no system that cannot be hacked in some way by somebody and the quickest way into a corporations innermost secrets can be through its lawyers computer systems another set of ethical rules involves law firms hiring third party ediscovery providers the rules are clear that the attorneys are responsible for any problems caused by those providers legal liabilities of attorneys mishandling of these issues beyond these ethical considerations lies the fact that computer security breaches can generate lawsuits against the lawyers and cloud storage companies even so attorneys
continually are behind in keeping up with the latest in hacking prevention social media cloud security and many other aspects of modern technology that directly impacts their offices and their clients interests and many of them get sued because of it II discovered pre-trial rules under their Rules of Civil Procedure parties meet shortly after a lawsuit is filed to determine what discovery will be allowed and how long it will take this can be a complex procedure involving lengthy conversations among the parties and the presiding judge several of the Federal Rules of Civil Procedure govern how the parties
proceed with a discovery before trial they try to speed up the trial and make cooperation amongst the parties a priority but things can fall apart in a hurry and the judge may have to step in and make decisions about the scope of discovery the e-discovery pre-trial rules include rule 16 B and 26 F on meetings and conferences rule 26 B - on the scope of discovery rule 26 B 5 on privileged claims rule 26 F on pretrial discovery conference rule 34 on forms of production and rule 37 on failure to preserve electronically stored information we
will look at each of these in turn FRCP rule 26 F 26 8 116 feet planning taken together these rules alert counsel in the court that they should consider ediscovery issues as early and comprehensively as possible the parties must confer at least 21 days before the scheduling conference with the court to work out agreements on the preservation of electronically stored information the forms of ESI production the methods that will be employed to filter out irrelevant information and protection for privileged information once the scheduling conference has occurred the court will issue a scheduling order that will
govern the pace of the litigation Federal Rule 16 governs pretrial conferences in general rule 26 F covers ediscovery pretrial meetings in particular rule 26 F is the overarching rule governing how a discovery will be handled during the case the rule covers the pre-trial discovery decisions that the parties and the court need to make before the discovery process can begin rule 26 F goes over several topics to be settled by the parties starting with potential settlement ESI preservation and the creation of a discovery plan a discovery plan is usually a written agreement between the parties about
how a discovery will go forward but it can sometimes be imposed by a judge if the parties can't agree the court may also order a discovery progress reports to be submitted along the way the rule also gives a judge discretion with deadlines this conference will also be the place to discuss privilege the discovery plan includes discussion of the scope of discovery and which electronic data discovery tools may be used by the parties this discussion may continue through the pre-trial process as discoverable data may require different discovery techniques as it is revealed the discovery plan also
includes the format in which the discovery will be transmitted and we'll cover metadata file formatting etc the conference also includes case scheduling and initial disclosure of information under Rule 26 a 1 which covers witnesses documents and other evidence etc that must be disclosed to the other side before trial once the e-discovery plan is completed the judge has 21 days to schedule a pre-trial hearing to discuss the case schedule under Federal Rule 16 be rule 34 producing ESI FRCP rule 34 covers how the responding party to an ESI request must produce the requested data for ESI
unless otherwise agreed by the parties or stipulated by the court the data must be produced as stored in the ordinary course of business and in a form that the receiving party can read although the ESI does not have to be produced in multiple formats the rule applies to parties and non parties such as witnesses rule 37 failure to cooperate and discovery failure to preserve or produce ESI in a timely fashion and in a usable form can bring sanctions under FRCP rule 37 e that rule speaks to both inadvertent and deliberate destruction of data there are
times when data is destroyed in the regular course of business such as when memory is regularly wiped every 90 days and those will not result in sanctions if the data is unavailable for reasons beyond the control of the transmitting party then the court simply proceeds without it but if the data has been deliberately destroyed or spogli aided after a litigation hold was properly served the rule allows the court or jury to presume that the data was unfavorable to the party that destroyed it or even to enter a default judgment inadvertent disclosure clawbacks and waiver in
discovering and producing documents that can run into the millions sometimes documents are transmitted which the other side is not entitled to for reasons of privilege client confidential information privacy laws or other circumstances it also happens when documents are not redacted in a way that they're supposed to be a model ethical rule covers this topic admonishing lawyers not to inadvertently disclose client data this can happen for several reasons usually human error but the response to inadvertent disclosure must be to attempt to negate its effect if possible on the other hand if the dadoes privileges are waived
then the data stays with the receiving party 1 2017 New York case can illustrate several ways in which this data can be inadvertently produced in Mill Lake V Wells Fargo an attorney used a third-party company to find relevant emails unfortunately for the attorney she never really understood how the process worked and ended up disclosing personally identifiable information of hundreds of her clients customers to the other side because she thought she'd reviewed all the emails when in fact she had not a further problem was that the documents were incompletely redacted this point is preventable human error
but it happens all the time the solution in this case was to clawback the data that is to return it to the sender that's the usual solution to these problems although that may not be the perfect answer of course clawbacks for inadvertently disclosed data are covered by FRCP rule 26 B 5 B and Federal Rule of Evidence 502 B for attorney-client privileged information an attorney work product it may be impossible or even silly to order a party to forget information but information subject to a clawback order or agreement cannot be used at trial and a
court may order a party to delete all copies of the clawback information there are times when the court will allow inadvertently disclose data to be clawed back but there are also times when the data disclosure legally constitutes a waiver that allows the data to be used by the other side these cases are decided based on the nature of the disclosure but the recommended path is always to have an agreement between the parties and the discovery plan covering waiver and clawbacks work product rule under federal evidence rule 502 D the work product doctrine protects documents prepared
by or for an attorney in anticipation of litigation the work product doctrine also covers data assembled within a database for attorneys however documents that are responsive and not prepared an anticipation of litigation must be produced even if they are stored in an attorney's database searching for and retrieving data only a few years ago a document was something written on a piece of paper a document review consisted of lawyers or paralegals reading stacks or rooms full of documents a large number of documents and huge lawsuit might add up to a hundred thousand of them now documents
are data and are reviewed by computer programs complex litigation may involve tens of millions of electronic documents and other materials that need to be reviewed checked for privileged narrow down to potential evidence submitted to the other party court or jury and so on so who reads all these documents nobody actually computer programs now dive into the data looking for key word and phrase hits on relevant material instead of looking at each document these programs look for specific words and phrases that the parties have decided irrelevant to the case the term in general use in the
legal world for the computer tools that find the data subject to e-discovery is electronic data discovery there are numerous electronic data discovery tools covering various kinds of data storage and access there are two basic technological ways of running a search the first is using search specific terms and the second is relying on a machine learning program using search terms is straightforward the search program looks at each word in the data field looking for a word or group of words this is expensive time-consuming and generates numerous false positives think of yourself running Google searches while researching
a complex topic but it is ultimately accurate machine learning programs do not look at every document but make algorithmic predictions about which documents fit the search parameters the process of using machine learning to find relevant data is called technology assisted review those programs use predictive coding to find relevant materials in the sea of data this process is called predictive intelligence and computer assisted review and is based in the broad field of machine learning or artificial intelligence predictive coding looks at huge fields of documents according to set parameters given to the program by a human and
determines which of these documents is relevant to that parameter this is done by creating a small or seed set of documents which are used to find relevant terms and then those findings are used to create the relevancy parameters of the large search through all the documents predictive coding can be used for other issues beyond relevancy for instance responsiveness to certain issues or privilege humans then analyze the relevant documents that the predictive coding found in the best case predictive coding takes millions of documents and presents a small percentage of those to be analyzed by more straightforward
methods like word search or having a human read them predictive coding if it works the way it's supposed to can save countless hours in fact studies published in the early 2000s found that predictive coding was far more accurate in finding relevant documents than human document review predictive coding as applied to litigation has been used since about the beginning of the century but it has only been allowed in court since about 2012 and is now the standard and litigation data searching predictive coding isn't perfect of course after human review in fact most of the documents found
by predictive coding have been found to be not relevant predictive coding is just a starting point to narrow down the numbers of documents that undergo physical human review nevertheless courts now accept these algorithms as sufficiently accurate that the use of this technique is now almost universal in federal court in our next module we will focus on the rules of proportionality in other words when discovery requests are considered too burdensome to be reasonable and thus enforceable we will also look at the admissibility of the products of ediscovery in court
