Effective January 1, 2014, the Massachusetts Rules of Civil Procedure will require attorneys and parties to revisit the issue of the preservation and discovery of electronically stored information (“ESI”). Notably, new MRCP 26(f) envisions that parties hold an Electronically Stored Information Conference (“ESIC”) at the start of litigation. The rule also provides procedures through which the courts can oversee this process.
The federal courts and many other jurisdictions already have similar rules regarding ESI. However, while the concept may be familiar, it will be important for parties to take proactive steps at the outset of a claim to avoid potential pitfalls as the litigation develops. The mechanisms of MRCP 26(f) set forth both requirements as well as suggested practices. Attorneys should be aware of these to protect the clients’ interests and better position their case at the outset of litigation. Clients should be prepared to assist their counsel and recognize that the Rule may impose new burdens on them and require that they develop new internal procedures.
Early Conferences Between Parties
At the request of any party within 90 days of service of the first responsive pleading, an ESIC between the parties shall be held to address ESI. MRCP 26(f)(2)(A). ESICs may also be requested at a later date and if parties do not agree within 30 days of the request, a motion for a court ESIC may be filed. MRCP 26(f)(2)(B), MRCP 16.
Any ESIC between the parties must address all topics under 26(f)(2)(C)(i-vii): (i)any issues relating to preservation of discoverable information; (ii) the form in which each type of information will be produced; (iii) what metadata, if any, shall be produced; (iv) the time within which the information will be produced; (v) the method for asserting or preserving claims of privilege or of protection of trial preparation materials, including whether such claims may be asserted after production; (vi) the method for asserting or preserving confidential and proprietary status of information either of a party or a person not a party to the proceeding; (vii)whether allocation among the parties of the expense of production is appropriate; and (viii) any other issue related to the discovery of electronically stored information.
In addition, within 14 days of an ESIC between the parties, the parties are required to file a plan with the court. MRCP 26(f)(2)(C). If a court conference is held under Rule 16 to address electronically stored information, the court is required to make an order under MRCP 16. However, you cannot rely on the court to explain the technology to you and lay out everything under 26(f)(2)(C)(i-vii) and 26(f)(3)(A-J). Likely, the court’s Rule 16 order will reference or rely on the parties to create the plan. The court may enter an order addressing Electronically Stored Information, but it is not required to enter such an order. MRCP 26(f)(3).
Upon receiving a claim, it is often premature to determine what ESI is relevant, let alone what may need to be produced. Those are decisions to be made as the claim develops, through discussions between a party and its attorneys. The first and most critical step is to preserve any and all ESI that may relate to the claim. If information is not preserved at the outset, spoliation may become an issue down the road.
ESI is often stored on many different devices in many different forms. If you do not act quickly to secure the information, it is more than likely that it will no longer exist in a few months. Locations to consider include company file servers, company email servers, company desktop computers, company laptop computers, blackberries, iPhone and other smart phones, webmail accounts, personal computers, USB flash drives, external hard drives, and internet file storage sites such as Google Drive or Dropbox. Posts on social media websites may prove valuable as well. Consider capturing information from facebook, LinkedIn, twitter, and other social media websites.
Early preservation will also benefit a party insofar as it forces the party to create an inventory. Knowing what information exists is essential to defending any claim. Most information can be managed, even if it is damaging, so long as it is found early and the lines of communication are open between a party and its attorney. If you delay preserving and inventorying ESI, an early assessment of the case may underestimate potential risk.
The word “metadata” is not defined in MRCP. It is widely understood by the IT community, but often mysterious to the legal community. Metadata is defined by Merriam-Webster’s as “data that provides information about other data.” In short, it is the information within a file that you do not see when you click “print.” This data can be useful to determine facts such as date the document was created, who created it, when edits occurred, possibly what those edits were, and other valuable information. When preserving, reviewing, and transferring ESI it is important to understand what metadata a file holds so that you do not inadvertently discard it, or disclose it.
Storage of Preserved Information
Once it has been determined what ESI will be preserved, a storage method will be required. Ideally, all ESI will be identical to its original state, so that if production is required, a party may work with their attorney to determine what may be privileged or confidential and how to withhold certain information. Common options for storage of captured information are: (1) an “image” of the device on which data is stored; (2) an exact, unaltered copy of the responsive electronic information stored on the responding party’s device; (3) a copy of the electronic information, with only certain information included; (4) physically printing the ESI so that it is in document form.
Transferring ESI to Your Attorney
Each party needs to work with their attorneys to determine the best method to transfer preserved information. Depending on logistics for those involved, there are several options: (1) a client may preserve their information in house, and attorneys review ESI at a client location; (2) all ESI may be transferred to the attorney’s office; (3) a third party vendor may be used to gather, inventory, and preserve, and even help produce ESI. As with traditional document productions, attorneys seeking to evaluate a client’s exposure will need to determine what ESI is available to the client. In addition, in anticipation of a request for ESI, and later in preparation to respond to such a request, each party’s attorney will need to review all ESI and determine with their client what should be produced and how.
Responding to Requests for Production
All of the intricacies of ESI should be considered when propounding a request for production of documents and when responding to a request. In responding to requests for ESI, the analysis in its simplest form remains the same: what is relevant, what may be withheld due to privilege, what must be produced, and of the ESI produced, what if any is confidential, privileged, or requires another special designation. The complication is in how to address each of these concerns.
Once it is determined what information is privileged, those claims of privilege must be memorialized in a privilege log as required by MRCP 26(b)(5). As amended, 26(b)(5) addresses what is required related to ESI and provides a provision to assert a privilege to ESI that has been produced.
Protective orders are almost a necessity when producing electronic information, as over-production is often a possibility, and you may very well need to produce ESI that is confidential. A piece of paper can be stamped “CONFIDENTIAL” in red ink. When dealing with ESI, that may be possible, but likely not without converting to hard copies. It is important to address how ESI will be “stamped” early on, so that confidential and proprietary information is not disclosed to parties or non-parties that should not have access to such information.
Gathering responsive information, determining what to produce, review of such information, and producing it, can all be a very costly undertaking. You should consider the scope of the undertaking prior to determining whether sharing expense is appropriate under MRCP 26(f)(2)(C)(vii).