Preparing an E-case

Source from:  worldtobacco.co.uk 07/09/2007

On 1 December 2006, the American Federal Rules of Civil Procedure (FRCP) were amended to take into account some of the challenges associated with the disclosure of Electronically Stored Information (ESI) within the discovery stage of litigation. Similar amendments took place in October 2005 to the English Civil Procedure Rules (CPR).The purpose of this article is to look at how the English changes have impacted companies,explore the effect of the US modifications and specifically examine what tobacco companies might do in order to prepare for the at times daunting challenges of an e-disclosure project. As the majority of tobacco litigation emerges from the US, any firm doing business in this area could be significantly impacted by the new rules. Most people's definition of ESI will refer to electronic data,such emails, Word, Excel, Power-Point or MS Project files. Collecting this information from a variety of locations, such as lap-tops, central servers and back-up systems, is complex enough, but ESI can also include the data stored on mobile phones,personal digital assistants (PDAs) and pagers. It can also include hidden data, such as "meta-data", system information and deleted files. Finally, instant messaging (IM) is also within the remit of ESI and may need to be disclosed. Small wonder then that techno-savvy lawyers will be at a distinct advantage in the so-called "meet and confer" phase and may be able to obtain distinct advantages over their less technically literate opponents. Both the CPR and the FRCP changes incorporated two main modifications. First,that it is now mandatory for the parties to have early discussions on e-disclosure issues, and second, parties must now declare those data sources they are not going to review for relevant material. Companies might want to amend their litigation strategy to take account of these changes and should certainly incorporate an "early look" at the e-disclosure process into their case preparation efforts. The evidence from this last year would suggest that in England these changes to the CPR have yet to have a significant impact.In contrast, the US system-with its more advanced case law and in particular the recent trend of the courts imposing heavy sanctions and penalties on defaulting parties - could prove to be a less tolerant environment for those companies who are slow to embrace a new way of working. The main thrust of the remaining amendments to the US rules is to attempt to apply some proportionality to the preservation and production processes. For example the new rules provide "limited protection" against sanctions for a party's inability to provide relevant ESI lost as a result of the good-faith "routine modification,overwriting and deletion of information that attends normal use".This concept was called "Safe Har-bour" during the drafting of the rules, but this label has gone from the final version,possibly as an acknowledgement that the rule may actually offer very little protection from sanctions. As this concept has yet to be explored and tested by the US courts, for now the recommended approach would be to place a "litigation hold" on all such business practices as soon as it can be reasonably identified that there is the possibility of litigation. The mind-set of juries appears to be that companies always have a nefarious reason for deleting data and the punishments flow accordingly. The other main attempt to reduce the burden of e-disclosure is to enable clients to exclude "not ieasonably accessible" data sources from the scope of the production process. Again, this approach has yet to tested by the US courts, and until the case law emerges, lawyers will need to have a wealth of technical information at their fingertips to argue as to the accessibility or otherwise of ESI. Remember these arguments might well be conducted in front of Judge who is also coming to terms with a new, complex and rapidly changing environment. The early indications in this area seem to be that judges will tend towards a "sampling" approach, in effect forcing companies to at least have an initial stab at revealing all the identified data sources. That said, the US rule changes are in effect trying to encourage a "two-tier" methodology for data production, with the "readily accessible" data being provided first and the more difficult (and costly) information only being produced if it can be proved that it is required. In advancing and countering the arguments for a two tier approach, lawyers will need to demonstrate their grasp of the technologies involved and the relative ease (or otherwise) that information can be retrieved, and the associated costs. The principle of cost sharing is associated with these debates, as lawyers will try to convince a skeptical judge that the production burden is onerous and should be bourn (at least in part) by the requesting party. In part two of this story Tom Hopkinson and partner Andrew Haslam explain how tobacco firms can prepare for litigation ware that even personal correspondence may be exposed in the courtscan be found in the features section of: Tom Hopkinson is a principal and Andrew Haslam a consultant in the London office of the Electronic Discovery Practice of global expert services firm LECG (www. lecg.com). They can be reached at thopkinson@lecg.com and ahaslam@lecg.com. Enditem