In an earlier post, we discussed how District Court Judge Iain Johnston noted that “at times, ESI discovery can be complex,” but the “same basic discovery principles that worked for the Flintstones still work for the Jetsons.” Indeed, ESI discovery, just like its paper predecessor, involves five fundamental steps: (1) identification, (2) preservation, (3) collection, (4) review, and (5) production. Specifically, regarding “identification,” Judge Johnston observed that “the initial client interview is crucial to litigation success” and maintaining “a healthy skepticism concerning a client’s initial explanation of a case” is critical. According to Judge Johnson, counsel should elicit detailed, specific facts rather than being content with generalities and conclusions that the client may initially offer. “Reasonable counsel conduct proper and thorough initial client interviews not simply because it is best practices; rather, these interviews are required by the Federal Rules of Civil Procedure and the Rules of Professional Conduct.” Fed. R. Civ. P. 11, 26(g), 37(e); Model Rules of Prof’l Conduct r. 1.1 cmt. 5 (Am. Bar Ass’n 2020).

  1. Identification of ESI: The Custodian Interview

But, how does a client interview allow for the identification of ESI – the growth of which has continued unabated. According to the Court, the custodian interview is the proper tool to identify ESI. Whether a different interview or merely an outgrowth of a client interview, custodian interviews are not merely a theoretical best practice. Rather, a proper custodian interview is mandated by the Federal Rules of Civil Procedure and the Rules of Professional Conduct. Fed. Rs. Civ. P. 26(f), 26(g), 37(e); Model Rules of Prof’l Conduct r. 1.1 cmt. 8 (Am. Bar Ass’n 2020). According to the Court, such an interview is a way to satisfy an attorney’s “obligation to investigate their clients’ information management system thoroughly to locate potentially relevant and discoverable material, no matter how technically opaque that information system may appear. Such an investigation goes well beyond simply asking the client for the relevant files and trusting that the client itself has a complete understanding of its own information technology structure.” citing Kenneth J. Withers, Computer-Based Discovery in Federal Civil Litigation , 2000 Fed. Cts. L. Rev. 2, 3-4 (2000) (emphasis added). At the least, a reasonable custodian interview consists of locating the relevant people and the locations and types of ESI. The relevant people are the individuals who have custody of the relevant ESI or the ability to obtain the ESI and counsel must interview them to identify, preserve, collect, and produce the relevant ESI. 1 LN Practice Guide: MA e-Discovery and Evidence § 3.07[1]. The failure to adequately interview key custodians that results in the failure to identify, preserve, collect, and produce ESI can result in sanctions. Small v. Univ. Med. Ctr. , No. 13-cv-0298, 2018 WL 3795238, at *–––– – ––––, 2018 U.S. Dist. LEXIS 134716, at *149-50 (D. Nev. Aug. 8, 2018); HM Elecs., Inc. , 2015 WL 4714908, at *17, 2015 U.S. Dist. LEXIS 104100, at *46 (finding “it was unreasonable to ask one person”).

The relevant locations are those places where the ESI can be found so that it can be both (a) preserved and (b) collected and produced. Relevant locations can include innumerable places, including hard drives, laptops, and internet-based applications.

  1. Preservation of ESI: The Litigation Hold

The next step, according to Judge Johnston’s road map is to preserve ESI. Indeed, once litigation is reasonably anticipated, a party is duty-bound to take good faith steps to preserve materials that may be relevant to the litigation. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216-17 (S.D.N.Y. 2003); Fed. R. Civ. P. 37(e). Although perfection is not the standard a party must preserve what it reasonably ought to know is relevant to possible litigation and is in its possession, custody, or control. See, e.g. , Doe v. City of Chicago , Case No. 18-cv-030542019 U.S. Dist. LEXIS 113395, at *14-15 (N.D. Ill. July 9, 2019). In order to do so, litigants and attorneys must familiarize themselves with operative data retention systems to determine whether potentially relevant information is being preserved. Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment (“It is important that counsel become familiar with their clients’ information systems and digital data—including social media—to address these issues.”)

According to the Court, attorneys may not merely inform their clients of these preservation duties but must affirmatively implement a litigation hold. Indeed, “[t]he preservation obligation runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction…a responsibility [that] is heightened in the age of electronic discovery.” Orbit One Commc’ns. v. Numerex Corp.271 F.R.D. 429, 437 (S.D.N.Y. 2010) (internal citations and quotations omitted). A litigation hold notice is a communication that puts clients on notice of their duties to preserve documents within their possession, custody, or control that are relevant to the litigation and further directs the clients how to fulfill those obligations. According to the Court, best practices dictate that a written hold is the superior form for practical reasons, including because it documents when the hold issues and what a litigant must do to meet discovery obligations. But, according to the Court, irrespective of the form the litigation hold notice takes, its content is critical including, for example, instructions to disable autodelete functions. Finally, the Court notes that the issuance of a litigation hold does not end counsel’s duty in preserving ESI. Rather, according to the Court, counsel must continue to supervise or participate in efforts to comply with the duty to preserve. The Sedona Conference, Commentary on Legal Holds, Second Edition: The Trigger & The Process , 20 Sedona Conf. J. 341, 358 (2019).

  1. Collection of ESI

Collection of ESI is not to be delegated lightly, according to the Court. Custodian self-collection involves counsel directing a client to identify, preserve, collect, and/or produce information in response to discovery requests. As the motion before Judge Johnston demonstrated, without proper guidance and oversight from counsel, self-collection can be replete with issues. For example, a client may fail to identify all sources of responsive information due to a lack of understanding or self-interest; or fail to preserve evidence. And so, it is a far better practice to have counsel meaningfully involved with the collection of ESI.

  1. Review of ESI

The review of the collected ESI can raise thorny problems, particularly as it relates to the identification, culling, and logging of documents protected from disclosure by a privilege or the work-product doctrine. The Federal Rules of Civil Procedure have attempted to address those problems in various ways. See, e.g., Fed. R. Civ. P. 26(b)(5)(B). Likewise, Federal Rule of Evidence 502(b) provides a valuable safeguard, provided counsel uses it.

  1. Production of ESI

Production of ESI involves several issues, including, but not limited to, the nature of the production and the timing of the production. The nature of the production is addressed in Rule 34(b)(2)(D), (E) and should be discussed among counsel early in the process. Additionally, it is important to understand that some ESI must be disclosed automatically consistent with Rule 26(a)(1)(A)(ii). And if ESI does not fall within the scope of the required initial disclosures but is responsive to Rule 34 production requests, it must be produced within 30 days barring a different date identified in a case management order. Fed. R. Civ. P. 34(b)(2)(A).[1][2]

[1] The Court aptly notes that the five basic steps of e-discovery assumes that counsel is competent. Indeed, counsel have an ethical obligation to be competent in their knowledge and ability to identify, preserve, collect, review, and produce ESI. This is not a new requirement. And if attorneys are not competent in these areas, they have an ethical duty to become competent, associate themselves with attorneys who are, or to decline the representation.

[2] In 2012, the ABA’s Commission on Ethics 20/20 wrote that “technology has irrevocably changed and continues to alter the practice of law in fundamental ways” and that “[l]awyers must understand technology in order to provide clients with competent and cost-effective services…” * * * The 20/20 Commission noted that practicing law in today’s digital age “now require(s) lawyers to have a firm grasp on how electronic information is created, stored, and retrieved” and “lawyers need to know how to make and respond to electronic discovery requests and to advise their clients regarding electronic discovery obligations.” This Comment has been widely interpreted as imposing a duty relating to competence when practicing e-discovery.