More Thoughts on Document Discovery Basics
Many people are surprised to discover that litigants in American litigation are entitled to demand all of the relevant texts, emails, and documents anyone else possesses. Sophisticated litigants regularly keep this information ready for production in a litigation. But many other people (and a surprising number of lawyers) are surprised by the extent of the obligation or the work necessary to comply with it.
My original blog post on the subject is below, but here are some thoughts on the subject I have had in the years since:
To enforce a discovery obligation, litigants need to invest in time-consuming and expensive motions to compel. Accordingly, many litigants skip full compliance with the rules, expecting no one to sue to enforce them if the costs do not justify it. Similarly, many litigants complain about violations of the rules but don’t do much to enforce them, hoping that the complaints alone will get them the discovery they want.
While the discovery rules are technically uniform within a jurisdiction or, to some extent, nationwide, different judges take different approaches in enforcing them. Accordingly, a lot of discovery disputes involve lawyers huffing and puffing about how they know what the rules are and how shocked they are that the other side is brazenly violating them, only to later see the judge sees it all a different way.
At the start of a dispute, there are often some documents with obvious relevance. But there are often subjects in dispute that documents can help illuminate, and it is very difficult for either side to identify them early on. This makes it hard for the party with documents to know what to work hard to protect, and it makes it hard for the party seeking documents to know what to look for. Ultimately, one side may just work hard to do as little work as possible and to give as little as possible, while the other side does the reverse.
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Litigants in New York and federal court are entitled to demand their adversaries produce relevant documents. They can even subpoena non-parties to do the same.
To respond to these requests, litigants and non-parties must gather all of their e-mails and computer files and produce the relevant non-privileged ones to the party that requested them.
Why should you continue reading this post about document productions?
You are a junior associate doing document review and this post was produced during discovery.
You want to know how a dumb email you wrote became an exhibit at a trial.
You’re taking a break from interesting blog posts.
Documents aren’t usually produced in hard copy anymore. (Image Credit)
Litigants are entitled to relevant documents and communications.
The process of exchanging information before a trial is called “discovery.” The American discovery process is uniquely broad. In many other countries, a plaintiff needs to present her case based on largely on evidence that is already in her possession.
But in federal courts in the United States, a party can demand that another litigant produce its relevant documents and communications. And those terms are defined broadly:
Federal Rule of Civil Procedure 34(a)(1)(A) requires the production of:
“any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form”
Electronically stored information (often called “ESI”) includes e-mail, Microsoft Office documents, images, and audio and video files.
Lawyers apply an expansive approach to gathering ESI
To respond to a document request for ESI, a lawyer usually works with her client to identify the people who were involved with the case or would otherwise have created or received relevant ESI. Those people are called “custodians.” An adversary may insist on adding additional custodians if she believes that the proposed list omits people who may have relevant information.
Then the lawyer may have the client send copies of each custodian’s entire mailbox (usually a .PST file that contains a copy of every email that person has sent and received), as well as copies of relevant files from their work (and possibly personal) hard drive and from relevant directories on the client’s network.
For the past two decades, nearly every business uses e-mail. And so, taking mailbox files for multiple employees will mean that the lawyer will receive thousands or even hundreds of thousands of relevant emails. Instead of just reviewing all of them (which may take several eternities), lawyers use software to narrow the scope of their review. I’ll discuss that software in a later post.
Lawyers employ an expansive approach because, without it, potentially relevant documents may be omitted or even destroyed. Litigators are frequently skeptical of the efforts that their adversaries have used to gather ESI and, if they learn about possible places where more relevant documents may be, they may ask the court to compel the search and production of additional documents. Moreover, if documents are not gathered by lawyers at the start of discovery, they may be deleted in the ordinary course of business. Once a litigator learns that potentially relevant evidence has been destroyed, they may ask the court to punish the litigant, either through the payment of fees or an adverse inference about what could have been in the destroyed documents.
Document Productions are Often Voluminous
Document requests are often very broad because the lawyers making the request at the start of a case do not know what evidence the opposing party possesses. Accordingly, they often ask the opposing party for all of the documents it possesses on various topics that are relevant to the dispute.
Although parties usually object and dispute ways to narrow the requests, document productions in commercial litigation often include thousands (often more than tens or hundreds of thousands) of emails and other documents. In the past, document productions used to be made by delivering cardboard boxes of documents to opposing counsel.
Today, document productions are often made by providing either USB drives of documents or making them available for opposing counsel to download. (Image Credit)
In my experience, most documents produced in discovery do not go on to become exhibits at trials, or even at depositions. But lawyers still need to comb through them to find the ones that support or undermine the claims.
You Should Be Careful About What You Write in Emails
A popular adage about discovery is that every time you send an email, you should consider the “Send” button to say “Exhibit A” on it. This is because emails, even ones you don’t think much about because you send dozens of emails every day, are stored somewhere and someone can find them and make them an exhibit in a litigation. In fact, if you are in a commercial dispute, someone like me may be reading through hundreds of your emails looking for the one that helps or hurts the case.
People should be very clear in their professional emails so their emails are not misinterpreted in discovery. This is because when people read an email in discovery, it is often months or years after it was written. It may mean something very different in the context of a case than the author intended at the time it was written. If it is sarcastic or contains a joke, the joke may not make sense years later. If it referred to something specific, but unstated, that reference may be lost in the future.
During a deposition or trial, a witness may have the opportunity to explain her emails. But a judge or jury may not believe the witness’s explanation, and the witness herself may not be confident about what she meant in an email she wrote in the distant past.