By Cary J. Calderone, Esquire
Judicial perspective on E-Discovery- by the Honorable Elizabeth D. Laporte, Magistrate Judge, U.S. District Court, Northern District of California
Judge Laporte addressed an audience that understood that in the last year about 100 billion gigabytes of business information was subject to compliance regulation. Emails, which included business and personal email, were now fodder for lawsuits and criminal indictments. So, the Judge noted, “litigation readiness is more important than ever.” She gave examples that explained when meta-data should probably be produced and examples of when native versus non-native formats might be necessary. My favorite observation the Judge shared was that, if you are going to claim you were surprised by this litigation matter, and that was why you did not have a litigation hold in place and any data that was destroyed or altered hold was purely accidental…you should not also try to make the argument that you should not be required to produce data because it is protected as attorney work product, prepared in anticipation of a legal matter. Scary that Judge Laporte believed she should remind the audience that while these were two legitimate points they should be raised separately. If argued together they become an oxymoron and cancel each other out. Perhaps all lawyers need the occasional reminder not to suspend logic and common sense when making multiple arguments in their efforts to aggressively and completely represent the interests of their litigation clients.
The Judge commented that the obligation for when a party must start to preserve evidence is when litigation is “reasonably anticipated” and that this was not a “bright line.” She also reminded the audience to review the Local Rules for each Federal District Court as they would likely contain important e-discovery information. For example, in the Northern District of California local rules require that parties at the Meet and Confer discuss whether voice mail needs to be preserved. She also quotes another Judge explaining that there will be no “drive-by” Meet and Confers and that real effort of all parties is expected to meet and resolve any discovery challenges. To accomplish this Judge Laporte recommends the parties be: 1) reasonable, 2) candid, and 3) credible, in their e-discovery efforts. For the Meet and Confer she pressed for lawyers to know enough to make accurate representations to the court and have alternatives for collection of discoverable materials. This can involve the in-house IT personnel, outside experts and the in-house General Counsel and sometimes the outside lawyers will bring outside IT experts to the Meet and Confer. There should be no uncertain terms and lead counsel must be acquainted with what they need to know, which includes what data is in your custody and control and what data is likely to be relevant. Furthermore, you must be willing to make mid-course corrections and adjustments to the legal hold as the case unfolds. Otherwise, she believes Courts will continue to use sanctions to keep the litigants “honest and trying to do their best.” Although I had not visited Judge Laporte’s courtroom while researching my “Federal Court for Discovery? Be a Boy Scout!” article, I am happy to note that doing so would not have altered the conclusions I reached and most likely would have bolstered my arguments for litigants to “be prepared.”