Electronic Evidence in Everyday Cases

Don’t assume that digital information is significant only in complex, tech-heavy cases. Even the most run-of-the-mill dispute can hinge on a piece of electronic evidence. Here, two lawyers explain how e-discovery factors into their employment and family law practices.

All in the family computer

William S. Friedlander

Not long ago, litigation discovery was often a paper chase, a matter of ferreting out paper documents or records lurking in an opposing party’s files or archives. Today, paper documents are just a part of the discovery picture. Increasing use of electronic communications and record-keeping means that all lawyers, including those who practice family law, must deal with “e-discovery.”

E-discovery takes in three basic forms of e-information—writings, records, and demonstrative evidence. Such information is subject to civil discovery requests and the basic rules of discovery and admissibility (although proposed federal rule changes, likely to be followed in many states, may soon limit access to certain e-information¹).

Your first challenge is to find the kinds of e-evidence that may exist—word-processing documents, graphics, e-mail messages and drafts, databases, computer-usage and operations information, calendaring, and scheduling and financial records. Then learn where the evidence is stored and what hardware, software, backup, and service or retention protocols are in use. The standard discovery devices—document production requests, interrogatories, and depositions—are the vehicles for this inquiry.

Once you find likely sources, frame specific discovery demands, again using standard discovery devices, to obtain relevant information without sparking document destruction or drowning in a sea of indecipherable data. A computer forensics expert can help identify what is retrievable, any risks of loss or spoliation, and how to retrieve and review the information disclosed.

Your demands might specify that information be disclosed in a computer-readable format (to facilitate your search for relevant items), that the opposing party provide data compilations and/or the keys and codes used to generate compilations, and that disclosures include the date and time stamps (metadata) of the information sought, so that not only will you know what the adverse parties know but when and how they knew it.

Once e-information is obtained, you need to consider how to read, store, and use it, with an eye to efficient location of relevant data, integrity of stored documents, authentication of evidentiary materials, and protection of proprietary or confidential information. E-information is usually admissible as a business record or an admission. As with all evidence, anticipate challenges to authentication, admission, and credibility.

Case in point

Let’s say you represent a wife whose husband runs a family-owned corporation. In anticipation of the divorce, the husband has created numerous offshore shell corporations, to which he has transferred assets. He’s also engaging in an Internet love affair or two. Given his history of asset and marital manipulation, you want to inspect the husband’s computers to obtain essential financial and personal information, preferably with the help of a computer forensic expert.

Anticipating objection and a retaliatory loss of data, you move by order to show cause to:

• permit you and your computer expert to “impound, clone, and inspect the computer’s servers, hard drives, individual work station PC[s], laptops, and other items containing digital [or electronic] data” from the husband’s residence, business premises, or any other location where he conducts business.²
• direct that the wife and/or her computer expert gain access to the husband’s residence, business, or other location where computer equipment can be found.
• direct that a sheriff accompany the wife and/or her computer expert.
• direct that the husband “cease the rotation, alteration, and/or destruction of electronic media that would result in the inability to recover the sought over computer data” regarding his actual and potential business and love interests.³
• direct that the husband pay counsel and expert fees for discovery.

The husband, of course, opposes the application. He moves to have the wife post a bond against potential data destruction or business-interference loss and demands that she be held liable for any decline in business value if proprietary information is disclosed. He also asks for a protective order to prevent invasion of privacy as to personal data.

You oppose the bond, assignment of liability, and protective order. Clearly, the financial and personal information are essential to your case, bearing on the grounds for divorce, as well as distribution, maintenance, support, and even child custody.

The court agrees; both financial information and personal information are relevant, not privileged, and the discovery rules favor full disclosure, even in matrimonial cases. The court imposes an immediate cease-and-desist order directing the husband to preserve all computer data—including backup files, and software and storage protocols—existing as of the date of the order to show cause. However, the court also provides a referee-mediated protocol for cloning and inspection of computer servers, drives, workstations and other data-storage facilities.

Under the protocol, the husband will disclose to the referee the location of all computers on which information is maintained or entered, both parties’ computer experts will participate in the cloning and review of cloned drives for relevant records, and the referee will retain custody of the clones until the conclusion of litigation. Unfortunately, the court denies your request for fees; each party must bear its own e-discovery costs and a share of the referee fees, subject to reallocation at trial. But now you can look for the records that, with proper interpretation, will confirm the husband’s asset transfers and illicit affairs.

Obviously, this type of discovery is technical, labor-intensive, and expensive. However, the lawyer’s success in mastering and managing the process will largely determine the discovery outcome.

Consider using the following checklist in planning your e-discovery:

• Identify relevant electronic information and the format it might be stored in, such as e-mail, graphics, word processing, databases, backups, and network and server archives. Be aware of the variety of electronic tools—Instant Messenger, Blackberry, cell phone, CD-ROM, diskette—and the way these developments might affect your case.
• Determine up front how the costs for obtaining and handling the e-discovery will be paid.
• Check state and federal rules to determine what limits, if any, are placed on electronic discovery.
• Consider whether a computer expert is necessary to frame demands and analyze what information is needed and where it can be found.
• Determine the methods used to discover the electronic information, such as interrogatories, depositions, and requests for documents.
• Use discovery to obtain information on computer, e-access, and e-storage systems used by the opposing party, including hardware, operating systems, applications, and retention or purging policies.
• Request that electronic information be submitted in computer-readable form, so that you can use keyword searches to locate relevant information.
• Consider requesting a protective order for electronic information that contains trade secrets or other proprietary information.
• Determine how you will process, store, and use the information that is discovered, be it trial exhibits, material for cross-examination, or leads to other sources of evidence.

E-discovery is a brave new world for many lawers, but it is an essential litigation tool. E-evidence can help the family law practitioner find smoking guns in custody, equitable distribution, and marital fault cases. Its rewards will quickly exceed the learning curve.

William S. Friedlander is a partner with Friedlander & Friedlander in Ithaca, New York.

Notes

1. The proposed amendments to the Federal Rules of Civil Procedure—which, if adopted, would take effect in December 2006—state explicitly that the rules would apply to both documents and “electronically stored information.” See Civil Rules for E-discovery May Be Changed, on page 22.
2. Etzion v. Etzion, 796 N.Y.S.2d 844, 844 (Sup. Ct. 2005).
3. Id. at 844-45.

Uncovering the employer’s e-data

Mark A. Buchanan

Discovery of electronically recorded information is of critical importance in nearly every employment discrimination case. Common types of electronic evidence include word-processing documents, e-mail messages, and personnel records. In some cases, you will find an evidentiary “smoking gun,” such as an e-mail message, clearly showing an intention to retaliate against an employee who has complained of discrimination.¹

In practice, careful planning can make discovery easier. Focus on finding out what electronic information is available, request it precisely, and file a motion to compel, if necessary, to assure that all discoverable information is produced.

Federal Rule of Civil Procedure 26(b) sets out the general principles governing discovery.² Rule 34(a), which covers the production of “documents and things,” applies to discovery requests for e-mail messages and other electronically stored information.³ The employer must make the electronic information stored on its computer servers and hard drives readable by the employee’s attorney.⁴

Rule 26(f) requires counsel to meet and confer before formal discovery.⁵ To prepare for this meeting, the employee’s attorney should, at a minimum, confer with the client and obtain all available electronic information the client has. This usually will include printouts of electronic information such as e-mail messages. It is also essential to write to the Equal Employment Opportunity Commission (EEOC) in order to obtain a copy of its investigation file, which may contain clues about relevant electronic information.

The focus at the Rule 26(f) meeting should be to obtain agreement about what electronic information exists, the format it is in, and whether it is reasonably accessible without undue burden and expenses to the employer. Try to get the employer’s attorney to stipulate to preserve relevant electronic evidence without an order of the court; disclose the existence of any deleted data, which may still exist in the employer’s network;⁶ and return any privileged documents that are inadvertently produced. You should put any stipulations regarding electronic evidence in a letter to opposing counsel, as provided in Rule 29.

Potential pitfalls

A frequent mistake is failing to ask the defendant, in writing, to produce electronic information in a digital format. In Fennell v. First Step Designs, Ltd.,⁷ an employer terminated an employee in part based on a written memo, which the employee claimed was fabricated after the fact. During a summary judgment briefing, the employee sought discovery of the defendant’s hard drive. The court denied this request as “too little, too late,” in part because the employee failed to specify in his discovery requests that the memorandum be produced in digital form.

Besides showing the date when a document was created, obtaining evidence in digital form has other advantages over paper. It is more easily searchable, provided that it is in a nonproprietary format. And an electronic version of documents such as e-mail messages may reveal complete information, without redactions, showing all parties who received the message.

Don’t forget to identify your client’s own electronic information in the initial Rule 26(a)(1) disclosures. In Williams v. Massachusetts Mutual Life Insurance Co., a plaintiff who sued for race discrimination testified that he once had seen an e-mail message that described an employer’s practice of using disciplinary actions as a pretext for terminating minority employees.⁸ Unfortunately, he had failed to identify this document in his initial Rule 26(a)(1) disclosures.

The employee filed a motion to compel, asking the court to appoint an expert to inspect the employer’s computer systems to find the missing e-mail. The defendant countered with an affidavit of a computer forensics expert, stating that the e-mail message could not be located. The court denied the employee’s motion, holding that before the plaintiff could conduct its own inspection of the employer’s computer system, it must first produce evidence that the employer’s representations were misleading or inaccurate.⁹

Be sure to seek electronic information that the employer has a legal duty to retain. Several federal agencies, including the EEOC,¹⁰ U.S. Department of Labor,¹¹ and Securities and Exchange Commission,¹² have regulations that impose a duty to preserve personnel records. An employer cannot evade this obligation by claiming that e-mail messages, or other electronically stored information, have been deleted as part of its routine document destruction policy. Once an employer reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents.¹³ If it does not, you can make a strong case for spoliation.¹⁴

Lessons from the big cases

In a class action case alleging employment discrimination, the class representatives typically will seek discovery of nationwide data on hiring, firing, and promotions. Such data usually resides on mainframe computers, in a proprietary format, which may be unusable without the assistance of a computer consultant. If the court finds that the electronic data is inaccessible and cannot be readily searched, then some form of cost-shifting is often imposed on the employee.¹⁵

Use interrogatories or take the deposition of the employer’s information technology person, as designated under Rule 30(b)(6), to find out if the information is truly inaccessible, or is stored in a format that can be readily converted to one that is readable by standard office software.

Contest the employer’s claim that obtaining data from backup tapes is unduly costly or burdensome. One method of doing this is to compel the employer to restore only a subset of the backup tapes, which may determine if a broader search is warranted.¹⁶ As the court stated in Zubulake v. UBS Warburg LLC, this is generally allowed without any special showing: “The suggestion that a plaintiff must not only demonstrate that probative evidence exists, but also prove that electronic discovery will yield a ‘gold mine,’ is contrary to the plain language of Rule 26(b)(1), which permits discovery of ‘any matter’ that is ‘relevant to [a] claim or defense.’”¹⁷

The sample of the employer’s backup tapes should cover a relevant time and seek data from key players. For example, in a retaliation case, this would include e-mail between the human resources officer who was handling the complaint and the employee’s supervisor, in the months immediately after the employee complained of sexual harassment. If this search yields positive results, the court will be much more inclined to require the employer to bear the additional costs of restoring other backup data.

Discovery of electronic data may prove decisive in winning your employment discrimination case. You can increase your chances of obtaining key information by seeking an early agreement on preservation of electronic evidence, learning what electronic documents exist through a corporate records deposition, and tailoring your discovery requests to ensure that you get everything. If an employer refuses to produce documents that are reasonably accessible, follow through with a motion to compel, stating what documents exist and where they are stored, and request that the employer produce them or face appropriate discovery sanctions.

Mark A. Buchanan is a trial lawyer who represents employment discrimination plaintiffs and is of counsel with Sanders, Simpson & Fletcher in Kansas City, Missouri.

Notes

1. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 312, n.8 (S.D.N.Y. 2003) (Zubulake I) (“Indeed, Zubulake has already produced a sort of ‘smoking gun’: an e-mail suggesting that she be fired ‘ASAP’ after her EEOC charge was filed, in part so that she would not be eligible for year-end bonuses.”)
2. FED. R. CIV. P. 26(b)(1).
3. See FED. R. CIV. P. 34(a); McPeek v. Ashcroft, 202 F.R.D. 31, 32 (D.D.C. 2001). See also Civil Rules for E-discovery May Be Changed, on page 22.
4. Advisory Committee Note (1970 amend.); see also Sattar v. Motorola, 138 F.3d 1164, 1171 (7th Cir. 1998) (ordering employer to download e-mails onto hard drive or conventional disks after company had produced the data on tapes that plaintiff’s equipment could not read); Zubulake I, 217 F.R.D. 309, 316-17 (holding that the term “document,” within the meaning of Rule 34(a), includes e-mails contained on backup tapes).
5. See FED. R. CIV. P. 26(f). Some federal district courts have promulgated electronic discovery guidelines, to focus the parties’ efforts early on ensuring full disclosure and exchange of electronic evidence. See, e.g, Electronic Discovery Guidelines of the U.S. District Court for the District of Kansas, available at www.ksd.uscourts.gov/guidelines/electronicdiscoveryguidelines.pdf (last visited Aug. 26, 2005).
6. See Zubulake I, 217 F.R.D. 318.
7. 83 F.3d 526, 531 (1st Cir. 1996).
8. 226 F.R.D. 144, 145-46 (D. Mass. 2005).
9. Id. at 146.
10. See 29 C.F.R. §1602.14 (2004). “Relevant personnel records” might include records pertaining not only to the complaining employee, but also pertaining to the employee’s supervisor, underlings, peers, or any other employee, depending on the facts of the case. Lombard v. MCI Telecomm. Corp., 13 F. Supp. 2d 621, 628 (N.D. Ohio 1998).
11. See 29 C.F.R. §1620.32 (2004).
12. See 17 C.F.R. §240.17a-4(b) and (4) (2004).
13. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (Zubulake IV).
14. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 112-13 (2d Cir. 2002); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1418-19 (10th Cir. 1987).
15. See Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 284 (S.D.N.Y. 2003) (Zubulake III).
16. See Zubulake I, 217 F.R.D. 309, 323.
17. Id.