People involved in civil lawsuits must comply with rules of discovery requiring that they produce documents requested by the other side. In another article we describe basic court discovery rules.
But what if there are no paper documents?
What if the information at issue is stored electronically, some on one computer system, some relegated to offsite storage, thumb drives, or other data systems?
What if information requested has been updated, edited or deleted?
How Courts Tackle Electronically Stored Information
Old court rules covered facts and information on paper. Tons of paperwork existed in “file folders, filing cabinets, and in boxes placed in warehouses”. As explained in notes to newer rules, when a company or other entity decided the papers were no longer needed,
“the document was burned or shredded and that was the end of the matter. There was rarely an argument about sifting through the ashes of shredded material to reconstruct a memo that had been sent.”
Notes to Massachusetts Rules of Civil Procedure, Rule 26, effective Jan. 1, 2014, citing 2006 Federal Rule notes and the National Conference on Uniform State Laws.
Electronically stored information presents challenges. Normal computer use including the simple act of turning it on and off can alter or destroy electronically stored information. The electronically stored information may be deleted, yet still continue to exist even if in forms difficult to locate, retrieve or search.
What About Inaccessible Electronic Data?
The issue raised is what to do when documents requested are not necessarily at the fingertips of those to whom the document requests are directed. In the paper era, numbered document requests could be reviewed one by one, documents located and copied.
But what if the requested document has been edited? What about data existing only on a crashed hard drive or stored on a device no longer operable, such as an early “zip drive” or unreadable old “floppy disc”?
Intentional deletion or destruction of data brings the potential for penalties under spoliation law, discussed in more detail in another blog article.
But, in the scenario where the information may exist somewhere, but be very difficult to recreate in a presently decipherable form, rules enacted in the Federal Courts in 2006 mandate a procedure for the parties to conference whether and how to retrieve the information. Enacted in a number of other states including Massachusetts in 2014, the rules require parties to address issues including whether the likely burden or expense of digging out the data outweighs the likely benefit. Only if the parties fail to agree may they pose the issue to a court.
Responding to Requests for Electronically Stored Data
In the paper days, whether it was a personal injury case or other civil dispute, requests were generally for documents. This usually included paperwork like accident reports, photographs of vehicle damage, crash diagrams or sometimes audio & video recordings. But the new rules – Federal Rule 34 and similar state rules – have been revised to include:
“other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.”
Federal Rule of Civil Procedure 34(a)(1)(A); Mass R. Civ. P. 34(a)(1)(A).
So, a corporation locked in a products liability claim may be asked for safety memos drafted during product design. The documents may have been revised, deleted or may exist only in an inaccessible storage format. If the parties in the case can’t agree on how far to go to obtain the data, it’s up to the court to balance the burden of digging out the data against the likely benefit.