As the responsibilities for preservation and production of electronic records become clearer, parties and counsel should take a proactive approach to preparing for battles that may develop. As in warfare, the proactive approach is one in which the counsel should wield at least as much command offensively as defensively.
This preparation involves more than just knowing the law. It also involves potential agreements with opposing counsel, early steps to meet preservation and production obligations, and making sure that the party’s "story" of its e-discovery efforts can be told effectively.
This article will briefly address a critical component of that "story" - the information technology (IT) professional who may be asked to tell it.
It is not safe to assume that an e-discovery dispute will be a typical back-and-forth hearing on a motion to compel, with minimal relief ordered when all is said and done. The law on the issue is becoming more developed, clarifying issues regarding electronic-document and data preservation, metadata, cost-shifting, counsel’s obligations, spoliation and sanctions. Perhaps the best starting point for e-discovery standards is the series of six district court decisions in Zubulake v. UBS Warburg LLC, starting with Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake 1). These cases identified prior case law on the issues, evaluated the state of current technology and outlined areas of note through an extended e-discovery battle. The Zubulake cases have been cited in many decisions across many jurisdictions.
In fact, courts throughout the nation have awarded sanctions, sometimes severe, for a perceived failure to comply with e-discovery obligations. Some of the cases involved include:
Tantivy Communications, Inc. v. Lucent Technologies, Inc., 2005 WL 2860976 (E.D. Tex. Nov. 1, 2005) - finding sanctionable conduct where a party or counsel allegedly tried to "hide the ball" with electronic discovery;
Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 W.L. 679071 (Fla. Cir. Ct. Mar. 1, 2005) - finding "willful and gross abuse" of discovery obligations in connection with electronic discovery, and ordering severe sanctions;
E*Trade Securities, LLC v. Deutsche Bank AG, 230 F.R.D. 582 (D. Minn. Apr. 18, 2005) - awarding sanctions for failure to preserve hard drives, e-mail and other information; and
In re Telxon Corp. Securities Litigation, 2004 W.L. 3192729 (N.D. Ohio 2004) - recommending default judgment for alleged electronic-discovery abuses.
As one federal judge stated, in the Zubalake V decision: "Now that the key issues have been addressed and national standards are developing, parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information." Zubulahe v. UBS Warburg LLC, 2004 WL 1620866 (S.D.N.Y. July 22, 2004) (Zubulake V).
Where Tech Witnesses Have Mattered
Many of the cases in which sanctions were awarded have involved a court’s consideration of testimony proffered by a party’s technical witnesses tasked with trying to explain the efforts that were made. For example, the trial court in Morgan Stanley explained, at length, its perceptions of a company’s efforts to produce backup tapes and other relevant data, and its perceptions of misstatements in certifications provided to the court regarding those efforts. The trial court used the IT witnesses’ testimony to develop a long list of perceived gaps in discovery compliance, and awarded severe sanctions against that party. The case is currently on appeal, but at a minimum, it confirms the importance of preparing witnesses early for what might be a serious battle down the road.
In Tantivy Communications, the court determined that sanctionable conduct had occurred in connection with a party’s handling of e-discovery. The court’s decision was based in large part on its finding that documents of testing relevant to the dispute (interoperability testing) had been conducted, but that records of those tests had been destroyed through normal document-destruction practices. The court noted the lack of explanation for the handling of these documents:
While this Court is aware that in certain cases, some documents will "slip through the cracks" and not be preserved, Lucent has offered no credible explanation for why interoperability documents were not retained as required by law - especially when they had been specifically requested numerous times by the Plaintiff. (Tantivy, at 2.)
In short, it may not be enough for a party to use its best efforts to meet e-discovery obligations if it cannot credibly explain those efforts to the court, or even the jury. Thus, witnesses must be prepared to testify - truthfully, fully and in a way that their message is understood by those who would judge their credibility.
Picking the Witness that You’ll Need
While not every case will develop into an e-discovery battle, parties and counsel should prepare with the recognition that any case might. So, as a first step, how should a party select and prepare an individual (or individuals) to handle e-discovery obligations, and to testily about them if necessary? First, a party should consider whether it prefers to handle the task solely in-house or with the assistance of outside technical consultants. A number of factors go into this decision, including the costs involved and whether the in-house staff is capable and available to handle the task. This article will not address the relative merits of either approach, but it is worth noting that a capable "independent" voice may prove helpful in large e-discovery battles.
e-Discovery tasks are likely to be handled by a team consisting of counsel, technical staff and, possibly, outside technical consultants. Regardless of who is included on this team, two important points should be considered early:
If possible, one individual should be identified as the likely witness, or team leader, to certify and testify to the efforts made; and
Counsel and the parties must continually monitor progress.
The court in Zubulake V discussed this ongoing obligation: A party’s discovery obligations do not end with the implementation of a "litigation hold" - to the contrary, that is only the beginning. Counsel must oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents. (Zubulake V at 7-10.)
Who should be selected as a likely witness or team leader on e-discovery issues? Obviously, the witness must be knowledgeable - educated, trained or experienced (preferably all three) - on issues involving the company’s technology systems, its protocols and procedures for electronic-data maintenance, and the technological options available to address those systems.
Assuming that a knowledgeable witness is available, the next step is to evaluate the individual characteristics of that witness. Consider, for instance:
- Does that witness appear credible?
- Does that witness appear sincere in the presentation of facts?
- Is that witness combative, arrogant, timid, or otherwise a poor spokesperson for the company?
These issues, having long been considerations in the selection of corporate representatives and testifying experts, should also play a role in determining who might be appropriate IT professionals to present.
Getting the Witness Ready
Having selected a potential witness, parties and counsel should prepare that witness as if he or she will have to testify to a court or jury.
First, the witness must be aware that any documents he or she creates may be discoverable. Flippant e-mails or notes on the subject should be avoided, and any documents created should be engendered with the knowledge that they may become exhibits in a later hearing or trial.
Second, the witness should be prepared on the legal and factual issues that will be in play. While the witness does not need to be an expert in the law, he or she should be familiar with what each party will try to prove on whatever legal position is presented.
Third, the witness should understand the big picture, or themes of the story to be told. These themes will be developed through collaboration among client and counsel. The themes may vary, but will likely revolve around the message (assuming it is true) that the party used the utmost good faith in its efforts to preserve and produce relevant electronic data.
Fourth, the witness should be prepared to communicate the message in a way that will enable the message to be fully understood. The sophistication level of lawyers, judges and juries about technical computer issues varies greatly. While it may be safe to assume these days that most people have some familiarity with computers, a base level of knowledge is far from what will be necessary to review issues like backup tapes, forensics, data-storage and search costs, and similar topics. Even then, the biases that a judge or juror might have regarding the reliability of the technology and the efforts made with that technology must be considered. As The Farmers’ Almanac reports in this quote - from 1978 - from an unknown source: "To err is human, but to really foul things up requires a computer."
Telling the Story
The storytelling component is critical. A technical witness, like any other expert, should be prepared to assume that his or her audience is not familiar with technical terms and thus, layman’s terms, diagrams and other aids will have to be used. Consider starting with a diagram of the various systems involved (e.g., desktop computer, how it is connected to a server, storage devices available, backup tapes.). That diagram can be a "chalkboard" of sorts, from which the technical expert can identify sources of electronic documents and data (e.g., e-mail systems, word-processing documents, spreadsheets), and then how and where they might be saved. The witness can effectively become a teacher (while taking care to avoid being condescending).
Once the background is established, consider explaining the efforts made in a chronological fashion. Explain, for instance, what was done from the first moment that the party was aware of likely litigation; from that point, the witness can explain the efforts to present, using documents or graphics - or both - along the way.
Next, the witness may need to be prepared to testify to future events - ie, what it may cost to do additional searches, what amount of duplication of existing documentation is likely from additional searches, and what other discovery options the opposing party has. Questions regarding duties to produce and cost-shifting often focus on these issues, and the witness may be a party’s best, or only, support for its positions on these points and, such being the case, then he or she should be prepared to address them.
Finally, the witness must be prepared for cross-examination. He or she should be prepared just as any critical witness in the case would - ie, prepared for the setting, the characteristics of opposing counsel and prepared for the types of tricks opposing counsel might use to take testimony out of context. Mock examinations may be useful to prepare the witness for what is to come.
Of particular interest with technical experts is the often-used introduction "Isn’t it possible ...?" Technical witnesses often enjoy engaging in these theoretical discussions, but a lawsuit is not the scenario for that. The witness should be reminded that many hypothetical fact patterns may be provided in questioning, but that does not mean that the hypotheticals have anything to do with the case at hand. Also, possible is not the same thing as probable. IT witnesses should remember, then, that a lawyer’s questions about theoretical possibilities may be just that - hypotheticals that use assumptions inconsistent with the facts. While an IT witness may need ultimately to answer theoretical possibilities, the witness should also make clear in answering that the assumptions being made in these hypotheticals are not consistent with those presented in the actual facts of the case.
And, in Closing
In sum, as technology advances, the battles over that technology faced by parties and counsel will continue to grow. Legal standards governing these battles must be understood. Also, parties and counsel must be prepared to fight those battles using the most effective weapons available to them, including credible, honest and well prepared witnesses with knowledge about that technology.