Litigation is inherently adversarial. The discovery process feels intrusive, particularly when your opponent wants to dig around in your computer network and files to find evidence to use against you. However, the rules governing discovery allow litigants to investigate their claims and they impose duties upon parties to act in good faith to search for relevant information. Because all litigation involves some allegation of wrongdoing, parties do not start from a place of trust, and cooperation during the discovery process can be difficult to muster. There is a movement within the legal community, though, toward mandating increased cooperation among litigants, even making them partners in the discovery process.
In March 2011, a very influential legal organization called the Sedona Conference promulgated principles regarding the production of certain types of electronically stored information ("ESI"). These new principles, which deal with databases, impose a burden on the producing party to educate the opponent on how the producing party's computer programs work, to affirmatively aid the opponent in gathering evidence stored in databases, and to validate the opponent's searches for accuracy and completeness. These principles signal a trend that impacts how information will be shared in litigation, a trend that affects the record retention policies companies adopt today, before they become involved in litigation.
The Sedona Conference is a small group of lawyers, judges and information technology professionals who have spent the last decade studying issues relating to ESI. The Sedona Conference was and is on the forefront of the interplay between ESI and litigation, and courts across the country look to the Sedona Conference for guidance. Therefore, when the Sedona Conference publishes works relating to the discovery of ESI, litigants, and potential litigants, should also pay attention.
In March 2011, the Sedona Conference published for public comment The Sedona Conference Database Principles: Addressing the Preservation & Production of Databases and Database Information in Civil Litigation. Databases have posed problems for litigants in the past because they contain, as the Sedona Conference authors call it, "structured data." To understand the term, it might be helpful first to understand its opposite. "Unstructured data" such as emails and word processing files, stand on their own; they constitute evidence in their own right. All you need to know about the file is contained in the file itself. Databases, however, consist of "structured data." The contents of any field within a database does not have value on its own; its value is derived from the fact that it is linked with other data in the database. The example provided by the Sedona Conference is of a database with separate fields for First Name, Middle Initial, and Last Name. The entry "John Q. Smith" is broken into three parts within the database. The entry "John" does not have independent evidentiary value. It is not until the three fields are combined does the information have value. These linkages have a tendency to make otherwise irrelevant information discoverable because it is tied to relevant information. The expansion of "relevant" information increases litigation costs, something the Sedona Conference wants to avoid.
Databases also create problems in litigation because they are very often unique or highly customized. While there are some common platforms, two competitors in the same industry probably have the same types of data in their respective databases, but the data is likely organized very differently. This uniqueness has made it hard to use common discovery and data mining tools on databases, which also increases litigation costs.
It is not uncommon for data to be stored in several different tables within a database, which means that retrieving relevant data requires an understanding of the database's unique architecture. For example, a company might store names in one table and addresses in another. The names in one table are linked to the addresses in another by a common customer identification number. To get any useful information out of the database, one must have some understanding of the tables and how they relate to each other. These relations may not be readily apparent from the graphical user interface. The fact that database data is both fragmented and linked creates problems for litigants who are unfamiliar with an opponent's system, which often results in wasted resources as parties fumble around in the dark trying to get useful information from a system with which they have no familiarity.
The Sedona Conference has always professed the value of cooperation among litigants when it comes to preservation and discovery of ESI. Courts also require cooperation. The Federal Rules of Civil Procedure require the parties to discuss ESI-related discovery issues at the outset of the case and draft a discovery plan tailored to address ESI specifically. The existing rules allowed for parties to conduct discovery aimed solely at an opponent's computer resources, a form of "pre-discovery" not connected directly to the merits of the dispute. Litigants have, at least for the last decade, been required to respond to such inquiries. The newly promulgated principles regarding databases, however, open doors to new avenues of pre-discovery. The Sedona Conference indicates that a party could even be required to provide training to its opponent on how to use the database so the opponent can better craft discovery aimed at the merits of the case. The principles suggest that a database user has an obligation to communicate to an opponent the features and shortcomings of the database in an effort to improve data collection techniques proposed by the opponent that are unlikely to gather relevant evidence.
In other words, if courts adopt these Sedona principles, litigants will be required to help their opponents learn enough about the database to facilitate the opponents' gathering of potentially harmful evidence.
The principles also discuss the manner in which database information is to be produced, or transmitted, to an opponent in litigation. For a decade, parties were empowered to request that data be transmitted in a specific format. If you want data produced electronically, or in its "native format," you usually could get it that way. Databases sometimes pose problems because of their uniqueness. Often times an opponent cannot simply open the database without some other application software (which may require a license). The Sedona Conference principles impose a duty on the producing party to assist the opponent in accessing the data.
Databases present some opportunities for streamlining data collection because many databases include query and reporting tools that can be used to hone in on information relevant to the dispute and cull out irrelevant information. The "pre-discovery" conducted regarding the database structure itself will inform this process. The question of which party runs the queries or the reports is an interesting one. The responding party certainly has more knowledge of the database system and is in a better position to manipulate the data. However, the requesting party will not trust that the query or report was run correctly, particularly when they yield no helpful information. The Sedona Conference principles address this by placing an affirmative duty on the producing party to verify the accuracy and completeness of any production to ensure that it fully responds to the questions posed by the opposing litigant. In some instances, the Sedona Conference principles envision training the requesting party to use the opponent's database so the requesting party can run the queries and reports itself.
While focused on litigation, the Sedona Principles also impact the manner in which companies preserve data, either pursuant to a written record retention plan or through a litigation hold. Record retention plans should be crafted with an eye toward how the data might be used in future litigation. Because litigants have an obligation, if these principles are adopted by the courts, to instruct their opponents about the inner workings of their databases, companies should consider preserving manuals, technical guides and other information that describe the database architecture. Of course, record retention plans should address databases and the information contained in them. When litigation is anticipated, a litigation hold should issue. As the Sedona Principles codify, just because some information relevant to the dispute is contained in a database does not make the entire database discoverable. Rather, parties should narrowly tailor their requests to only those fields or tables that are relevant. This means that only those fields and tables relating to the case need to be preserved subject to a litigation hold, which can be helpful if the entire database is large and cannot be reduced to a permanent storage medium. The "pre-discovery" cooperation is intended to facilitate this narrowing. As painful as it may be, sharing information with an opponent about the inner workings of a database may lead to an agreement to limit the scope of the litigation hold and reduce the burden on the responding party.
The Sedona Conference authors very clearly anticipate a high level of cooperation among parties who probably detest each other. This may not be a realistic expectation. If the courts latch on to these new principles, as they did with prior principles announced by the Sedona Conference, courts will use their authority to mandate cooperation. It is true that databases create special problems for litigants and can drive up litigation costs for both sides. The Sedona Conference authors posit extensive cooperation as mutually beneficial. From their view, the requesting party is going to get at the information it wants eventually; it would be more economical if they were pointed in the right direction from the outset. This view is probably correct in the macro sense. It will be hard to recognize those benefits when the emotions of litigation cloud one's vision. We should monitor the courts to see if they impose similar levels of cooperation on other forms of ESI. |
