The shift to electronically stored information (“ESI”) is not the wave of the future, it is the present tide. Like it or not, the way that evidence is created, stored and maintained has changed, and the approach to discovery must adapt. As states like Georgia begin to adopt specific, uniform rules for dealing with the discovery of ESI, attorneys likely will find that the newly adopted rules facilitate litigation. Until then, state court practitioners should look to the Federal rules and sources such as The Uniform Rules Relating to the Discovery of Electronically Stored Information, drafted by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) and the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, produced by the Conference of Chief Justices for helpful guidance.
To more efficiently conduct discovery, an electronic discovery conference should be scheduled and a plan implemented to narrow the discovery issues and make the discovery process more effective and cost efficient. Preparation for a discovery conference should include knowledge of the opposing parties’ electronic system, what ESI the opposing party may have, where it is stored, how difficult it may be to access it, who maintains control over it, and what it may cost to obtain the ESI.
Electronic discovery is far more susceptible to abuse than traditional discovery because it “is retained in exponentially greater volume than hard-copy documents; is dynamic, rather than static; and may be incomprehensible when separated from the system that created it.” Henry S. Noyes, Good Cause Is Bad Medicine for the New E-Discovery Rules, 21 Harv. J.L. & Tech. 49, 51 (2007). However, if parties cooperate during discovery they will not only facilitate the expeditious and economical resolution of their matters, but they also will take better advantage of the things that often make ESI more useful than paper documents. For example, electronically stored documents often contain metadata that identifies the creator of the document, the document’s creation date, and when the document was accessed or edited.
Electronic discovery can pose some challenges because ESI can be difficult and costly to obtain, and because the information is easily destroyed. Nevertheless, reasonable steps must be taken to preserve potentially discoverable ESI once a party has notice that the ESI is or may become relevant to current or future litigation. Accordingly, businesses should be advised to implement a valid document retention and destruction policy that is customized to anticipate litigation and permit the company to suspend the destruction of ESI. A failure to preserve ESI can carry serious consequences for the client and the attorney that include a wide variety of sanctions, and sanctions are on the rise.
About Pope McGlamry
Pope McGlamry, a Georgia law firm with offices in Atlanta and Columbus, GA, is a recognized leader in the field of civil litigation. The firm specializes in wrongful death and catastrophic injury cases, particularly those involved with motor carrier liability or products liability. The firm is also a recognized leader in business litigation and class actions suits, especially those related to consumer issues. Although its offices are in Georgia, Pope McGlamry maintains a regional and national practice. For additional information, visit www.pmkm.com.