A multi-part series on the fundamentals eDiscovery practitioners need to know about the identification and preservation of potentially-relevant ESI
In “In the Beginning,” we reviewed the importance of effective identification and preservation as well as the triggers for doing so. In this Part, we discuss the legal and technological scope of what must be identified and preserved.
The first thing you must know to undertake effective identification and preservation activities is the potential legal and technological scope of things for which you might need to be looking. For our purposes, that scope comes from the Federal Rules of Evidence and Civil Procedure and relevant case law, and it can be quite broad.
The scope of potential discovery – and, therefore, of the duty to (identify and) preserve – is deliberately broad, which is consistent with our court system’s emphasis on truth-seeking over gamesmanship. As stated in one recent court decision involving discovery sanctions:
Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice. When a corporation and its counsel refuse to produce directly relevant information an opposing party is entitled to receive, they have abandoned these basic principles in favor of their own interests.
In its simplest form, the potential scope of discovery and, therefore, preservation for electronically-stored information (ESI) has four elements:
The definition of “documents” provided by the Federal Rules of Civil Procedure is expansive enough to encompass almost any sort of material in any format. Rule 34(a)(1)(A) states that it covers “documents and 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 . . . [emphasis added]
The Committee Notes on the rule emphasize that this is intended “to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.” Thus, nothing can be overlooked based purely on its format or source type; everything is potentially within the scope of the duty.
Possession, Custody, or Control
Rule 34(a)(1) also specifies that the scope of discovery and preservation extends to those documents within “the responding party’s possession, custody, or control.” This phrase means that you are responsible, not just for the materials you physically or electronically possess, but for any that you legally control. Materials maintained by third parties on your behalf are treated the same way as the records you actually possess yourself. If you have the right (or, in some cases, the ability) to obtain it, you are responsible for preserving and producing it.
Please note that there are actually three distinct standards for how far “possession, custody, or control” is deemed to extend, depending on your jurisdiction: “Legal Right,” “Legal Right Plus Notification,” and “Practical Ability.” More information is available in The Sedona Conference Commentary on Rule 34 and Rule 45 Possession, Custody, Or Control.
Among the “documents” that are in your “possession, custody, or control,” the ones that may be discovered and must be preserved are those that are relevant. Relevance is defined broadly, by Federal Rule of Evidence 401. That rule dictates that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” The Committee Notes to the rule state explicitly that this is an intentionally low bar because “[a]ny more stringent requirement is unworkable and unrealistic.” Thus, any documents in your possession, custody, or control that have any tendency to make any fact of consequence more or less likely are relevant, potentially discoverable, and required to be preserved.
Finally, the scope of potential discovery and required preservation is limited to materials meeting the above criteria that are also unique. As specified by Rule 26(b)(2)(C), discovery is not meant to be “unreasonably cumulative or duplicative.” For ESI in particular, this is important, as it is in the nature of electronic systems to create numerous identical copies of materials, both for operation and for backup. Generally, there will be no additional evidentiary value to preserving numerous identical copies of the same materials.
Beyond those four elements, there are two additional potential limitations on the scope of discovery that are less relevant to the question of preservation scope:
Preservation can always be stopped if it’s later determined to be unnecessary, but lost unique materials can never recovered if they’re later determined to have been necessary after all.
We noted above that the rules were written to accommodate the ongoing evolution of computer technology and ESI sources. It’s worth emphasizing here that this means the potential technological scope of the duty of (identification and) preservation is a moving target, evolving as the technology and services that produce relevant ESI do. For example:
No one got in trouble for failing to preserve text messages, until they did and did and did. The same thing was true for social media, and it will soon be true for some other newer technology (probably a messaging or collaboration app). Technology will continue to leap forward, and legal expectations will follow slowly behind. You won’t be expected to consider a newer source, until one day you are.
Upcoming in this Series
In the next Part, we will continue our discussion of identification and preservation fundamentals with a look at the first steps for identification.