Legal and Technological Scope, Identification and Preservation Fundamentals Series Part 2

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 the Duty of (Identification and) Preservation

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:

1. Documents
2. In your possession, custody, or control
3. That are potentially relevant
4. That are unique

Documents

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.

Potentially Relevant

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.

Unique

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.

Other Limitations

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:

• First, as specified in Rule 26(b)(1), the scope of discovery is limited to that which is “proportional to the needs of the case.” Because any disputes over proportionality cannot be identified and resolved by the court until the matter is already underway, parties should not be quick to assume disproportionality and skip preservation.

• Second, as specified in Rule 26(b)(2)(B), “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” This is another type of proportionality requirement, and as with the general proportionality requirement, any disputes over it cannot be identified and resolved by the court until the matter is already underway.

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.

Ongoing Source Evolution

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:

• Mobile devices are turning up frequently as relevant sources in litigation. According to a 2016 litigation trends survey, roughly half of all litigation matters in 2015 and 2016 involved preservation and/or collection of mobile device data.  Of the mobile devices implicated in 2016, 93% were smartphones.

• Messaging services like WhatsApp were insignificant just a few years ago, but by 2016 72% of American adults were using them. Until relatively recently, auto-deleting messaging apps did not exist, but in 2016 they were used by 56% of smartphone owners ages 18-29.

• Usage of such services is growing inside companies too. Uber made headlines in November 2017 for its use of ephemeral messaging app Wickr, and they’re not alone.  Less than a year after its 2013 launch, instant messaging app Slack became the fastest-growing workplace software ever, and its rapid adoption has only continued.

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.