Electronic discovery (a/k/a ediscovery and e-discovery) is the process of identifying, preserving, collecting, preparing, reviewing and producing electronically stored information (“ESI”) in the context of a legal or investigative process.   In order that counsel may bring discovery issues (including e-discovery issues) to the forefront early on in the development of a case, the Federal Rules of Civil Procedure impose on counsel certain obligations.  These obligations include, but are not limited to, requiring counsel to participate in a Rule 26(f) conference, and requiring counsel to making certain initial disclosures pursuant to Rule 26(a).  Note that these obligations are imposed upon counsel irrespective of whether there is ESI relevant to the dispute.  However, competent counsel should be prepared to attend the 26(f) conference educated as to their client’s electronic data content and infrastructure, including any data that may be difficult or costly to produce, and should be further prepared to discuss issues like inadvertent production of privileged materials and phasing of discovery.

Rule 26(f) Conference

While the precise timing of the conference will depend on the individual Court’s scheduling orders and local practice, the 26(f) conference will inevitably give rise to one of the earliest opportunities for the parties to engage in comprehensive discussions regarding discovery, including issues relating to ESI.  Moreover, there is an expectation that the parties will exchange certain information, and reach agreement on many discovery-related topics.  Thus, it is critical that the attorney attending this conference be knowledgeable about his/her the client’s data, electronic storage systems and data retention.  

At the conference, counsel should discuss, among other things, the subjects on which discovery may be needed, when discovery will be completed, and whether discovery can and should be phased or limited to particular issues.  For example, as it relates to ESI, it may be most efficient to start with a discrete list of ESI sources (i.e., 5 custodians rather than 50), review fully that material, and agree to include additional sources at a later date if necessary. 

Relatedly, it is highly advisable to discuss the format of the eventual production(s) at this early stage. Even though production may not occur for many weeks / months, the ultimate format will aid in creating processing and review plans.  For example, without knowing the production format, one party may convert or otherwise manipulate its ESI in a way that is incompatible with the ultimately required production format.

Additionally, claw back agreements or protective orders dealing with inadvertent productions of privileged materials should be addressed at the 26(f) conference.  In almost all cases, the parties should agree to a process by which each side would have the right to identify and request the return of such material without the production resulting in a waiver. This agreement — commonly referred to as a claw back agreement—should always be incorporated into a court Order, either as part of the protective order or through another type of routine court order. The issuance of such an order should always precede any production in the case. Under Federal Rule of Evidence 502, if a court orders this kind of agreement, the order will protect the parties from claims of waiver if, among other things, the disclosure is inadvertent.  And, by creating this framework to resolve a potential inadvertent disclosure issue early on, it will inevitably reduce the potential for a dispute.

ESI and Rule 26(a) Disclosures

Rule 26 also imposes certain disclosure obligations on litigants.  Specifically, Rule 26(a)(1) requires each litigant to disclose to its opponent various types of information before any formal discovery requests are served in the case. The idea behind this “initial disclosure” is to require parties to be forthcoming with information relevant to the matter and to streamline the discovery process.  According to subsection (A)(ii) of the rule, each party must provide a copy — or a description by category and location — of all documents, ESI, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. Identifying specific custodians and non-custodial sources of ESI (i.e., departmental share drives or database programs) that are expected to be searched for relevant data should also occur at this stage.  It is critical to note that if you plan to argue that certain data is  not reasonably accessible for production due to the burden and/or expense of restoring/producing that data (i.e., legacy data or backup media), it must be disclosed to your adversary.   In fact, Rule 26(b)(2)(B) includes a provision related to “not reasonably accessible” ESI, which anticipates possible cost-shifting under particular circumstances. Under this provision, a party need not produce any ESI from sources that it deems to be not reasonably accessible so long as the party identifies the source with particularity to its opponent.  A source can be considered not reasonably accessible on the basis of “undue burden or cost.”*

Notwithstanding the obligations Rule 26 imposes, many lawyers enter a lawsuit (specifically as it relates to ediscovery) without a detailed understanding of their client’s ESI or a specific execution plan in mind. That’s a mistake that often proves to be costly.  Educating one’s self as to one’s clients’ ESI will inevitably result in a more efficient process, and may also help reduce discovery disputes and—most importantly—get parties to the litigation’s most relevant information faster.

* Note, however, once the source is identified as “not reasonably accessible,” the requesting party may nevertheless move to compel production from the identified source, but will need to make a showing of “good cause” to require it. If the court determines that good cause has been shown, it may in addition require the requesting party to bear the reasonable costs of production under the proportionality rule.

 

The short answer is – maybe; if there is any possibility that the information contained on the phone may be relevant to the claim or defense of any party in the lawsuit.

In this action (Brown Jordan Int’l Inc. v. Carmicle, 2015 WL 6142885 (S.D. Fla. Oct. 19, 2015)), plaintiffs sued defendant in the United States District Court for Southern District of Florida asserting a number of claims including: (a) a violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”); (b) a violation of the Stored Communications Act, 18 U.S.C. §2701; (c) a breach of fiduciary duty and the duty of loyalty; (d) conversion; (e) unjust enrichment; and (f) breach of contract and declaratory judgment (28 U.S.C. § 2201).    Defendant, Chris Carmicle, filed suit against BJI Holdings, LLC and other entities and individuals in the Circuit Court of Kentucky wherein he asserted multiple claims including: (i) wrongful termination; (ii) wrongful discharge; (iii) breach of contract; (iv) a violation of the CFAA; (v) conversion; and (vi) defamation.

Carmicle’s suit was eventually removed and consolidated in the Southern District of Florida with the original suit.

During the course of coordinated discovery, the parties entered into a Jointly Stipulated Order Setting Computer Forensic Investigation Protocol (“Ordered Protocol”). Pursuant the Ordered Protocol, Carmicle submitted his electronic devices and storage sites for forensic examination.  Based upon review of those devices and sites, BJI Holdings believed that the iPhone owned by Rashna Carmicle (“Rashna”)—Carmicle’s spouse—may contain information relating to the claims in the action.  Consequently, on September 5, 2015, BJI Holdings served a subpoena on Rashna requesting the production of her iPhone by September 11, 2015.  Rashna resisted and refused to voluntarily produce her iPhone.  BJI Holdings accordingly filed a motion to compel.

The Court, relying upon the Federal Rules of Civil Procedure generally, stated that the scope of discovery empowered parties to obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.  Fed. R. Civ. P. 26(b)(1). The Court further noted that:

a request for discovery should be considered to be seeking relevant information if there is any possibility that the information sought may be relevant to the claim or defense of any party in the action.

Against this backdrop, the Court found that the information sought from Rashna’s iPhone appeared to be relevant to the claims asserted in the action and good cause exists.   Specifically, Rashna is married to Christopher Carmicle, who is a party in both related actions pending in the U.S. District Court for the Southern District of Florida and during the course of discovery, BJI Holdings received a forensic report indicating that Rashna’s iPhone may contain discoverable information.  In the forensic examination report, the examiner outlines data destruction that took place on one of Chris’s Macbook Air laptops and notes:

Review of additional data, including Internet history, cookie files, p-lists and log files do not document any Brown Jordan International data, covered by the scope of this investigation, having been transferred through this laptop. The exception is an Apple iTunes backup file of Rashna’s iPhone, which contains some of the original Brown Jordan International screenshots. This data was not deleted, but apparently unintentionally captured on this computer as the iPhone had been synched via iTunes in December of 2013.

Because BJI Holdings presented sufficient evidence to convince the Court that Rashna’s iPhone may contain information relevant to the claims asserted in the litigation and demonstrated good cause to seek the forensic examination of the iPhone, the burden shifted to Rashna to establish that the requested material either does not fall within the scope of relevance or is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of broad disclosure.

Having failed to carry her burden, the Court granted BJI Holdings’ motion to compel and ordered Rashna to produce her phone for forensic examination.  The Court did, however, permit Rashna to review the material on the iPhone for privileged material prior to forensic examination.