Electronic Discovery and the Environmental Litigator
Paula J. Schauwecker · 2006
The proposed amendments to the Federal Rules of Civil Procedure are expected to become effective in December 2006. See www.uscourts.gov/rules. At the heart of those amendments is the more clearly defined duty of counsel to address the preservation and collection of electronic documents and information early in the litigation process and the consequent burden on counsel to work closely with his or her client’s Information Technology (IT) and legal departments to have a plan for this process as soon as she is on notice of, or reasonably anticipates, litigation. Part of this duty includes making sure that clients have proactively developed an electronic document retention policy that is rigorously enforced and that allows the IT department to halt the routine destruction of electronic documents in a timely fashion and to collect them in a legally defensible way when necessary. While all federal practitioners are subject to the new rules, environmental practitioners who represent corporate clients in regulatory compliance or environmental litigation matters may have particular regulatory or statutory triggers that signal the duty to preserve electronic evidence. By way of background, it is helpful to understand the reasons that the preservation and production of electronic documents do not fall neatly into practices under the current Federal Rules. First is the sheer volume of electronic information currently created and destroyed. Up to 92 percent of new information, and up to 60 percent of a business’s critical information, is stored electronically and most of that data is stored only electronically. Less than one-third of data is ever printed. Second, unlike paper documents, electronic documents are usually subject to some type of automatic deletion schedule. Most companies have systems that delete electronic mail after a certain period and routinely overwrite backup tapes where information is stored. This can mean that, without even taking specific action, important documents may nevertheless be lost if these automatic processes are not halted. This could lead to serious consequences if those documents would have been relevant to the litigation and should have been preserved. Third is the nature of information available in electronic documents and the persistence of electronic data. Electronic documents contain metadata that reveal the history of the document over time, including what changes were made and when, when it was authored, who has opened it, and to whom it was sent. Electronic documents are also persistent and may never really be gone. Although space is made available for overwriting when a document or file is deleted, many documents continue to exist even after they have been deleted. Finally, electronic documents are dynamic and designed to have content that is changeable over time. Thus, if not properly preserved, a document could potentially be altered after the duty to preserve it attached. See generally the Zubulake line of decisions. Zubulake v. UBS Warburg LLC, No. 02-Civ. 1234, 2004 WL 1620866 (S.D.N.Y. July 20, 2004); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. Oct. 22, 2003); Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003); and Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003). See also The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, available at www.thesedona conference.org. Of particular concern is the duty to preserve electronic documents at the appropriate time, because a violation of this duty can give rise to a finding of spoliation, or the wrongful destruction of evidence. The consequences of failing to preserve and produce electronic data can be very serious and include sanctions, see, e.g., Applied Telematics, Inc. v. Sprint Communications Co., 1996 U.S. Dist. LEXIS 14053 (E.D. Pa. 1996); adverse inference instructions, see, e.g., Linnen v. A.H. Robbins Co., 1999 Mass. Super. LEXIS 240, at * 11 (Mass. Super. June 16, 1999); admonitions to attorneys and payment of production costs, see, e.g., In re Bristol –Myers Squibb Sec. Litig., 205 F.R.D. 437, 2002 U.S. Dist. LEXIS 13808 (D.N.J. 2002); and even default judgments, see, e.g., Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107 (S.D. Fla. 1987). Courts are placing outside counsel’s actions under ever-increasing scrutiny. The key to determining whether a duty to preserve exists is whether the party had “notice” that the evidence in question was relevant to pending or anticipated litigation. This notice can take the form of prior lawsuits, prelitigation communication, the filing of a complaint, discovery requests, or discovery orders. “Once on notice, the obligation to preserve evidence runs first to counsel, who then has a duty to advise and explain to the client its obligations to retain pertinent documents that may be relevant to the litigation.” Telecom Int’l America, Ltd. v. ATT Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9659 (d)(1)(C); Air Pollution Prevention and Control Act, 42 U.S.C. § 7604 (b)(1)(A). Given this sixtyday window in which e-mails may be automatically deleted and back-up tapes with relevant information may be automatically overwritten, environmental counsel may want to advise his or her client to halt these automatic processes for key custodians or departments upon receipt of such notice. In addition, counsel may want to consider whether a Notice of Violation of permit conditions triggers such a duty. Of