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In states with well-defined rules or guidance from appellate courts,
attorneys are better equipped to be zealous advocates for their clients
and avoid costly missteps. Forty-eight states, the District of
Columbia, and United States federal courts have adopted some
degree of E-Discovery rules. 5 Kentucky, however, has neither rules
nor guidance from appellate courts. 6
Unfortunately, this lack of rules or guidance creates issues for
Kentucky attorneys. Theissues involve traditional discovery 7 difficulties
such as preservation, recovery, production and privilege—
all of which are magnified by the amount of information now
generated by society. Because the Commonwealth lacks specific
E-Discovery rules of criminal and civil procedure, attorneys are
left to grapple with complicated legal and technical concerns.
THE EXPLOSION OF INFORMATION
Digital information is ubiquitous—it exists in every type of case
from small claims court to complex multi-district federal litigation.
8 Indeed, the use of social media posts, text messages and
emails is increasingly commonplace in local courts. 9
Electronically stored information (ESI) consists of data that we
create with and without conscious effort. 10 It includes items consciously
created such as emails and documents, as well as data created
without conscious thought such as metadata, backup files
black boxes on vehicles, and cell phone location. Undoubtedly,
data created without conscious effort is surprisingly copious, and
thus plentiful fodder for the discovery grist mill. In some cases,
this unintentionally generated information may be of greater import
than data willfully generated.
Thewealth of information created in this digital age is nearly unfathomable.
According to recent estimates: the number of emails
sent and received per day in 2015 totaled over 205 billion, with
a projected increase of three percent over the next four years; 11
the number of business emails sent and received per user per day
totals 122 billion; 12 and nearly two-thirds of American adults (65
percent) use social networking sites. 13 While larger computing
device use remain fairly consistent with 78 percent of adults under
the age of 30 owning a laptop or desktop, 14 small handheld device
use is soaring. In fact, 64 percent of American adults now own a
smartphone 15 and tablet computer ownership is up to 45 percent
among adults. 16 Thesheer volume of data created, stored, deleted,
and copied can hardly be grasped.
Given this wealth of information, it is not surprising that lawyers
are increasingly adept at sniffin out relevant digital data to assess
the merits of litigation and for use at trial. As noted by experts in
the field “[s]ince the beginning of the 21st century, electronic discovery
has been the hottest topic in litigation.” 17 In fact, judicial
opinions regarding E-Discovery are being issued at rates comparable
to overall trends in data production. 18 Bigger fi ms and many
corporations now contain departments and staff to deal with ESI
issues. 19 Nationwide, courts are becoming more accustomed to
dealing with ESI—whether on the front end during discovery or
the back end at trial.
Fundamental to comprehending ESI issues is the realization that
until printed, all digital evidence is intangible—it exists in a netherworld
of code stored within our devices or at an offsite and perhaps
unknown location. Theintangibility of digital evidence separates
it from paper on several grounds:
• It is easy and cheap to store and it is stored in multiple
locations — such as how a phone may be synched
to both a computer and the cloud;
• It is fast—data moves from one side of the world to
another with the click of a mouse;
• It can be ephemeral—some portions may be easily
erased or routinely deleted, such as with routine file
maintenance;
• It contains metadata which can be altered every time
a file is etrieved; and
• In some instances it allows us to determine when and
who retrieved or altered the data.
ALL THAT INFORMATION AND THE
PRACTICE OF LAW
Given the differences between paper and data, discovery now bears
little relationship to what the majority of Kentucky attorneys once
knew and practiced. For instance, consider commonplace document
production scenarios as we once knew them. Picture musty
boxes of old records stored in the closet or file room of a mid-sized
company client. Counsel, or more likely an associate or paralegal,
tediously combs through hundreds, maybe thousands, of pages of
records looking for responsive documents. Once identified counsel
carefully checks for privileged material and then produces the
records to the requesting party.
“Perhaps litigators should consider that courts no
longer recognize E-Discovery inexperience (either
on the litigator’s or client’s part) as an excuse for
failure to produce or comply with discovery obligations,
and that courts, generally, seem to fin
E-Discovery disputes even more insufferable than
traditional discovery disputes.”
– Monica McCarroll, Discovery and the Duty of
Competence, 26 Regent U. L. Rev. 81 (2014).
Fast forward to 2016 and ask, “where are the records?” Some records
may exist in paper form, but most will be maintained on
computer hard drives, and they may no longer exist as a result of
routine document retention or disposal policies. To further complicate
matters, some records may be contained on archival disks,
some may be stored off-site in a third party’s cloud computing
storage, and then there are those pesky messages between our client’s
employees, managers, and third parties. Since we do most of
our communicating today by email and texting, those records are
also stored somewhere on a computer or an employee’s phone,
tablet, handheld device, or all of the above. Each electronic “document”
may also contain hidden data which indicates how and
BENCH & BAR |
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