Legal Bytes: Digital Discovery … What?
By John Brewer March 2004
All litigation involves a process known as discovery. Discovery is the process whereby one party asks for information and the other party responds to the discovery requests. Discovery in civil litigation is a topic that is fluid by its very nature. There is the ongoing friction between the plaintiff and the defendant as to the manner and the scope of the documents that are furnished pursuant to a request for discovery. Consider the impact of an opening statement with the following words (an opening statement is the beginning of a trial where the lawyers tell the jury what the evidence will be during the trial):
“You’ll see a lot of documents. But there are a lot you are not going to see. There are a lot of documents I haven’t gotten to see. Documents were destroyed. An order was entered by this court at the very beginning of this case, on May 5th, 1997, that the documents were not to be destroyed. It has already been found that thousands of documents and e-mails, among the people of the company, in the time that matters most to this case, don’t exist. And they don’t exist for the simple reason that American Home Products destroyed the documents. The legal implications of that destruction you will hear at the end of this case from the judge. We will ask you to do justice … to honor the memory of a young woman, Mary Linnen, who simply wanted to look beautiful on her wedding day.”
Back among the spectators, a Wall Street lawyer representing AHP investors shook his head, “How the hell could AHP let this get to trial?” he muttered to a benchmate. “This is a disaster.”
These are the words of Alex MacDonald, the lead lawyer for the plaintiff in the wrongful death trial of Mary Linnen. Ms. Linnen had taken the combination of weight loss drugs known as Fen-Phen for approximately two weeks and died less than a year later. American Home Products, the lead defendant in the case, destroyed electronic evidence in the case. This evidence was in the form of backup tapes. Among other sanctions, the court intended to instruct the jurors as to the implications of the spoliation of evidence and the inferences that could be drawn from the destruction. This was a very damaging factor in a case where American Home Products appeared to be a sinister villain corrupted by corporate greed. The case settled after the first week of trial but several jurors stated, after the trial, that they were prepared to award actual and punitive damages against the defendant for $1 billion. This is not a typo. There were jurors who were predisposed to award damages of $1 billion for the death of one young lady who died prematurely in the commonwealth of Massachusetts. Alicia Mundy tells the Fen-Phen story in a terrific book titled, Dispensing with the Truth.
“How much data is electronic? Technology consultants will tell you that it is not unusual for each employee to receive 30+ e-mails a day. If a company employs 1,000 workers, this adds up to 210,000 e-mails each week or 10.9 million each year. If a company employs 10,000 employees, this adds up to 2.1 million e-mails each week or 109 million each year. 100,000 employees create 21 million e-mails each week or over 1 billion a year.
More than 35% of corporate communications will never reach paper. Up to 40% is non-business communication. About 18% of e-mails contain attachments. Each attachment is a new discoverable object. Approximately 8% of e-mails are broadcasts; i.e., e-mail messages sent to more than one person.
Active versus inactive data: Active = live data, currently being used, currently on hard drives, databases, servers, etc. Active data is easy to search and can be searched using the Boolean techniques familiar to users of search engines.
Inactive = stored data, usually on backup tapes, perhaps in a warehouse, perhaps far away; perhaps made with software applications and operating systems that are no longer in use or, possibly, no longer in possession.
Inactive data is much more difficult to search, as that data is not stored in any logical or easily searchable way, and is therefore more expensive and more time-intensive. Why? Because inactive data must be returned to active data status before it can be searched. Unused computer capacity must be found to accommodate it and the software that generated it must be found so that it can be read.
These statistics are reprinted from the article by John Jessen, "Special Issues Involving Electronic Discovery," 9 Kan. J.L. & Pub. Pol'y 425, 2000.
What does this mean? It means that in many court cases, the focus has shifted from paper and traditional analog forms of documentation to digital information residing on computers and other digital equipment. This shifts the focus of many court cases from the paper memo to the e-mail residing on a server somewhere or backed up to tape.
The transformation to a digital society in terms of sending and storing information has changed the nature of legal litigation, the same as it has changed so many other areas of our society.
John Brewer practices law in Oklahoma City, is a member of the Governor’s and Legislative Task Force for E-Commerce, and enjoys issues relating to eBusiness and cyberspace. Comments and questions are welcome and can be emailed to: