Electronically stored information (ESI). It’s everywhere. In every case. And, it’s overwhelming! But in today’s practice, ESI is how cases are built and maybe even won.
ESI relates to emails, text messages, internal messaging, Word, Excel, PowerPoint, and other types of communications and documents that are stored in electronic formats. For plaintiff’s attorneys, the focus of your client’s claims against their current or former employer is some form of wrongful termination or retaliation resulting from a negative employment action. In most cases, while there is one decisionmaker driving the negative employment action, that decision would likely have required approval or execution by others. In all of this, there is a chain of communication that tells a story that may be different from the stated reasons for termination as communicated by the defendants. ESI related to this communication is relevant and discoverable, and pushing for ESI may drive otherwise reticent parties to reevaluate their cases and perhaps consider settlement. ESI may also show that one specific bad actor was driving the decision-making process, feeding information to the decisionmakers, and manipulating the termination decision or other negative employment action. ESI will help define the case timeline and aid in your depositions as well.
Defense attorneys recognize this as well and can put up numerous barriers to the production of valuable information. The most common response to a document request for ESI comes in the form of an objection on the claimed basis that the request is overbroad and unreasonable. As a defense attorney, you will also likely receive requests to provide the names of custodians, search terms, date ranges and other discovery limiting information.
As a preliminary matter, New Jersey’s Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), and 1.6 (Confidentiality) require that you understand and use discovery tools to elicit ESI and that your internal processes ensure confidentiality of the documents in production and transmission and in court filings. These rules require that attorneys be reasonably wellversed and competent in new technologies available in our field. This means seeking ESI in discovery and then knowing what to do with it.
Thrust into the middle of discovery disputes, our courts are asked to address proportionality, i.e., the cost and burden imposed upon the parties from whom the discovery is sought balanced against the relevance, need, and value of the discovery sought and, quite often, the most appropriate and least invasive mechanism for capturing and producing the ESI. Often, the judiciary will look to the Sedona Principles for guidance so you should start your analysis here as well.
10 ESI Considerations to Keep in Mind
- Have an exhaustive discussion with your client about how communications took place at the company. For instance, for the relevant time period, did the company issue phones, tablets, or laptops? Was there an internal messaging system? Who are the key players in the fact pattern? For defense counsel, this conversation will help identify what you will need to collect. For plaintiff’s counsel, this conversation will shape your discovery requests.
- If you are representing the plaintiff, make sure that your demand letter contains a data and evidence preservation/anti-spoliation request that addresses protection of both data and devices. Ensure that the request addresses ephemeral data, defined as data that is not automatically preserved and may be written over or destroyed in the ordinary course of business.
- In your ESI discovery requests, you will need to identify the custodians of the data so that the opposing party is able to do the search. The clearer and more specific your requests are, the fewer games you are likely to encounter in response and the more likely a court is to enforce your discovery requests. Custodians are typically those people who were involved in email communications, people in Human Resources who conducted or participated in any investigations, any decisionmakers, any potential witnesses, etc.
- You will also need to develop a list of search terms that the opposing party will use to gather the ESI that you are requesting. Make sure you understand how to set up the search terms so that they are narrowly tailored to seek discoverable and relevant information yet broad enough to capture important documents.
- In cases where the company issued an electronic communication device (i.e., cellphone, tablet, laptop) for the employee’s use, plaintiff’s attorneys should make a request for documents related to the chain of custody for that device showing what happened to the device after the employee returned it. This is particularly informative where a company files a counterclaim asserting some violation of their confidentiality policies or a breach of the Defend Trade Secrets Act. In some cases, you may find that the device was returned to the “bad actor” who then alleges that the plaintiff did something wrong, possibly presenting further evidence of retaliation.
- Be clear and specific about the format in which you want the ESI produced. To better understand the implications of the different electronic formats, consult with your ESI experts early in the process and certainly before you agree to the final terms of the confidential discovery protective order.
- In cases where your client is facing a claim/ counterclaim alleging breach of a confidentiality provision or the Defend Trade Secrets Act, make sure to have a thorough discussion with your client regarding what exactly they did with the company devices and/or data; you should understand the flow of data and communications so that you can track them through ESI. This is an important discussion to have at the intake meeting not only so that you understand your client’s exposure to a counterclaim but also so that you will be able to communicate these details to your ESI experts.
- When you send out your discovery requests, be proactive about sending an ESI protocol which sets forth the format in which the data sought will be produced, what types of data can be marked confidential, what can be marked “for the attorney’s eyes only,” the process for challenging these designations, and various other issues. The purpose of such confidentiality protective orders is to control as many variables as possible so that you are not having to file motions to compel or having disagreements about these basic considerations in the midst of discovery.
- Engage in a meaningful “meet and confer” regardless of whether you are in state or federal court. Your pre-trial judge is going to want to see that all counsel have made a good faith effort to resolve the issue before approaching the court. While there is no specific format (e.g., email or phone calls or in-person meetings) for a meet and confer, make sure to document the discussion after the call to confirm the parties’ understanding of what was discussed. These emails are going to be attachments to your motion to compel if the issues cannot be resolved.
- Consider using an ESI software processing platform to handle the data production received from the opposing party. While this is an added litigation expense for a plaintiff’s attorney, depending on how your retainer is structured, you will be able to charge the client for this, and hence, recover the cost in a fee shifting case. Using the ESI review platform allows you to more efficiently process large volumes of data, make sense of metadata trends, develop timelines, and become familiar with a variety of other tools that will help you prepare for depositions and trials. The growing market of legal ESI software has brought the prices down to make these tools more affordable for plaintiff’s firms. If you plan to pass this cost on to your client, make sure that you discuss it with them prior to executing the retainer agreement and include it in your engagement letter.
Next Steps
The most important step you can take is to build your ESI team of experts before your case starts. Your experts will guide the case through data collection, preservation, and complex ESI issues that may arise through discovery. Being armed with a good ESI protocol, internal checklists, and case specific data early in your case will make your discovery efforts more productive, yielding measurably better results.