Discovering e-discovery

In today digital age, the ubiquity of electronically stored information (ESI) has profoundly changed the way litigants conduct discovery, so much so that the Federal Rules of Civil Procedure (FRCP) were amended to address the specific issues surrounding ESI.

For example, FRCP 26(b)(2)(B) provides that a party need not produce ESI it identifies as not reasonably accessible because of undue burden or cost though a court may order the party to produce the ESI for good cause. Keep in mind, however, that this rule doesn't relieve a party of its duty to preserve relevant evidence. For example, a litigant might be required to preserve backup tapes that contain relevant evidence, even if it claims that such evidence isn't reasonably accessible.

A recent development involving e-discovery is the concept of discovery about discovery. These are discovery requests designed, not to elicit relevant ESI, but to elicit information about the procedures or methods a party used to search for responsive ESI. This information is important because, to identify discoverable ESI, a party needs to develop keyword searches or other protocols designed to pinpoint relevant evidence while minimizing the amount of irrelevant materials. In other words, it difficult to know whether a party has provided all discoverable information unless you also know how the party went about searching for it.

Several recent cases have permitted discovery about discovery. For example, in Ruiz-Bueno v. Scott, an Ohio U.S. District Court ordered defendants to answer interrogatories regarding efforts they had made to comply with discovery requests as well as procedures or methods they had used to search for responsive ESI. In this case, plaintiffs sought specific e-mails from 50 or so defendants. The defendants didn't explain how they had searched for them beyond the fact that each defendant was asked ¦ to produce his or her relevant e-mails.

The court ordered discovery about discovery, finding that the plaintiffs were entitled not only to the results of the ESI search, but also to information about how the defendants had looked for responsive documents.

The court also noted that, in most cases, these disputes shouldn't be presented to the court. FRCP 26(f) requires parties to confer early in a case and discuss, among other things, any issues about disclosure or discovery of [ESI], including the form or forms in which it should be produced. Parties should collaborate to resolve issues regarding search terms used and methods employed to identify responsive ESI.