[Web version – Original is on the letterhead of Trial Lawyers for Public Justice, P.C.] December 17, 2002
By Facsimile (415-565-4865 and 202-502-1755)
and U.S. Mail
Professor Richard L. Marcus
University of California
Hastings College of the Law
200 McAllister Street
San Francisco, CA 94102-4978
Mr. Peter McCabe
Secretary
Committee on Rules of Practice and Procedure
Federal Judiciary Building
Washington, D.C. 20544
Re: Response to Inquiry from Discovery Subcommittee of Advisory Committee on Civil Rules Regarding Discovery of Electronic Materials
Dear Messrs. Marcus and McCabe:
Trial Lawyers for Public Justice and the TLPJ Foundation respectfully submit the following response to Professor Marcus’ September 2002 open letter requesting public comment on the overarching question of whether changes to the Federal Rules of Civil Procedure (the “civil rules”) are necessary to address discovery of electronic information. We believe the ongoing debate over issues presented by the advent of electronic discovery is extremely important to the nation’s civil justice system and appreciate this opportunity to provide input to the Discovery Subcommittee of the U.S. Judicial Conference Advisory Committee on Civil Rules (the “Advisory Committee”).
As we explain below, Trial Lawyers for Public Justice and the TLPJ Foundation believe that civil rule changes directed at electronic discovery – particularly changes that make it harder to obtain electronic discovery – are neither justified nor necessary. Given the proliferation of electronic information in our society, we believe that liberal discovery of such information is essential to allow plaintiffs with valid claims to obtain justice in federal court. Despite a growing chorus of complaints that electronic discovery imposes excessive costs on defendants, no empirical evidence supports that view. Rather, based upon empirical evidence gathered in 1997 and before, it is likely that the more common form of discovery abuse in the context of electronic discovery is the practice of responding parties to evade legitimate discovery requests. In any event, current rules give judges ample tools and flexibility to address discovery abuses, even where electronic information is involved, as they should be addressed: on a case-by-case basis. Accordingly, we strongly encourage the Advisory Committee to make no changes to the civil rules at this time.
I. Interest of TLPJ
Trial Lawyers for Public Justice is a national public interest law firm dedicated to using trial lawyers’ skills and approaches to advance the public good. Litigating throughout the federal and state courts, Trial Lawyers for Public Justice prosecutes cases designed to advance consumers’ and victims’ rights, environmental protection and safety, civil rights and civil liberties, occupational health and employees’ rights, the preservation and improvement of the civil justice system, and the protection of the poor and the powerless.
The TLPJ Foundation is a non-profit charitable and educational membership organization that supports the activities of Trial Lawyers for Public Justice and educates the public, lawyers, and judges about the critical social issues in which we are involved. It currently has over 2700 members, who are primarily plaintiffs’ trial lawyers and law firms. The TLPJ Foundation’s members regularly represent plaintiffs in a broad range of personal injury, commercial, civil rights, tort, and other cases in the federal courts. For ease of communication, we will hereafter refer to Trial Lawyers for Public Justice and the TLPJ Foundation collectively as “TLPJ.”
As part of its efforts to ensure the proper working of the civil justice system, TLPJ has monitored and commented upon a number of proposed changes to the Federal Rules of Civil Procedure over the years, including proposed amendments to Rules 23, 26, 30, 34, and 37. Because the discovery rules govern a crucial part of our civil justice system, we welcome the opportunity to comment on whether additional rulemaking in the discovery arena is necessary to deal with the relatively recent explosion of digital information in our society.
II. Liberal Discovery of Electronic Information is
Essential to Preserving the Civil Justice System
Without question, the ever-increasing, widespread use of computers in this
country is revolutionizing the way we work, play, and communicate. According to a
University of California study, 93 percent of all information created during 1999 was
first generated in digital form – on computers.
In the world of business, up to 70
percent of records may be stored in electronic form,
and an estimated 30 percent of all
information is never printed on paper.
Indeed, many forms of electronic information
now routinely generated by businesses cannot be fully reduced to paper form at all.
Electronic databases, for example, have no exact paper counterpart because a print-out
cannot capture the formulas defining cells and fields in the database, and often requires a
knowledgeable administrator to create a meaningful printed format.
Other business
records routinely available in hard copy in prior decades may now be available only on
computer. Thus, vast amounts of today’s business information can be found only in
electronic form.
Not surprisingly, our reliance on computers is also changing the way we litigate.
Electronic evidence has become increasingly important in cases of all kinds, particularly
in cases involving businesses.
Notable examples in recent nationwide press reports
include federal and state investigations that have uncovered a slew of e-mails tending to
support allegations that certain Wall Street firms issued misleading stock analyses so as
not to jeopardize possible investment-banking business.
Perhaps even more well-known is the fact that electronic evidence played a big part in the government’s antitrust
suit against Microsoft Corporation. There, government lawyers used company e-mails in
part to impeach Microsoft Chairman William H. Gates and relied on sales and pricing
evidence from the company’s databases.
Damaging company e-mails also surfaced in
high-profile products liability litigation over the fen/phen diet pill combination and
rollover accidents in Ford Explorers.
In litigation over employment practices the
significance of e-mail evidence has grown exponentially, with plaintiffs often offering
evidence of discrimination, harassment, or retaliation in the form of e-mail
correspondence.
Finally, the experiences of TLPJ and its members confirm that
electronic evidence is, more and more, making a difference in litigation and often crucial
to the just outcome of a case.
Thus, civil rules permitting the liberal discovery of electronic information are both appropriate and necessary to preserve access to the civil justice system. As Magistrate Judge Schenkier wrote in a decision involving electronic discovery:
Our [judicial] system is premised on the view that through th[e] clash of
competing stories [presented by lawyers], judges and juries will have the
information they need to make a fair decision. In our system of civil
litigation, the discovery process is the principal means by which lawyers
and parties assemble the facts, and decide what information to present at
trial.
Given that so much information exists in electronic form – and perhaps only in
electronic form – liberal discovery access to electronic information must be preserved.
Litigants, and especially plaintiffs, must have access in order to assemble the facts they
need to prove their cases. Conversely, any amendments to the rules limiting or impeding
access to electronic discovery would invariably favor litigants who wish to provide less
information, usually defendants.
Current Rule 34 makes clear that discovery of documents “relevant” under Rule
26(b)(1) may include the discovery of electronic data, stating that a party may request the
production of “data compilations from which information can be obtained, translated, if
necessary, by the respondent through detection devices into reasonably usable form. . . .”
Further, the Advisory Committee notes state that document requests may apply to
“electronics [sic] data compilations from which information can be obtained only with
the use of detection devices . . . .”
Courts, in turn, have routinely recognized that
electronic information is discoverable pursuant to the rules that govern discovery
generally.
These rules, as we argue below, provide a flexible framework within which
all discovery disputes involving electronic information can be fairly resolved.
III. Rule Changes to Place Limits on Electronic Discovery are
Unwarranted Because There is No Empirical Evidence that
Electronic Discovery is, on the Whole, Unduly Burdensome
Despite the ubiquity of electronic information and the almost universal
recognition that electronic information is and should be discoverable, the corporate
community seems largely to have been caught off guard by the impact of the digital
revolution on litigation. A 2000 American Bar Association (“ABA”) Litigation Section
survey reported that 83 percent of respondents said their corporate clients did not have
established protocols to deal with discovery requests involving electronic information,
and 60 percent said their clients were not even aware that electronic information was
discoverable.
While many corporations have yet to understand the ramifications of
discovery in the digital age, a number of vocal advocates within the corporate defense
bar have identified electronic discovery as a galvanizing issue to inspire rule changes
designed to further limit the potential for corporate liability.
Accordingly, they have
sounded the alarm that characteristics unique to electronic information make discovery
of such information particularly burdensome for the responding party and argue that rule
changes are needed to prevent abusive and overreaching electronic discovery requests.
However, there is no empirical evidence to support the view that excessive
discovery requests for electronic information is a widespread problem. Rather, previous
empirical studies of discovery in general found that “stonewalling” – the failure to
respond to discovery requests adequately and in a timely manner – was by far the most
common form of discovery abuse in document production, and TLPJ is aware of no
empirical studies that show problems with electronic discovery are significantly different
in kind or degree from traditional paper discovery.
In the context of document
discovery generally, a 1997 empirical study on discovery commissioned by the Advisory
Committee plainly established that stonewalling, not excessive requests, is the most
widespread problem. It found that 84 percent of the attorneys in its sample used
document requests in their cases, 28 percent of those complained that a party failed to
respond to document requests adequately, and 24 percent reported that a party failed to
respond in a timely manner.
Only 15 percent of respondents complained that an
excessive number of documents were requested.
In other words, nearly twice as many
respondents complained of a failure to respond adequately (one form of stonewalling)
than complained of excessive requests. Interestingly, even defense attorneys were more
likely to complain about stonewalling than excessive requests, by a margin of 24 percent
to 19 percent.
Earlier empirical studies show that widespread stonewalling has long
been a problem. For example, in a survey conducted in the early 1980's, one-half of
1,500 litigators surveyed believed that unfair and inadequate disclosure of material prior
to trial was a “regular or frequent” problem.
Neither empirical evidence nor common sense suggest that stonewalling would
tend to be less of a problem when it comes to electronic discovery. Indeed, anecdotal
evidence in the digital age suggests that responding parties continue to routinely refuse
to produce discoverable materials or deny that they exist, construe what is discoverable
in the most narrow way possible, and engage in dilatory tactics to delay or avoid
production of unfavorable “documents,” whether they are in paper or electronic form.
For example, in a wrongful death action arising out of the use of the diet pill
combination known as fen/phen, a defendant corporation repeatedly asserted that it had
no back-up tapes containing e-mails relevant to the litigation and thwarted plaintiffs’
efforts to depose the person most knowledgeable about the company’s back-up system.
Nevertheless, more than 18 months after the applicable request for production had been
served, the defendant identified thousands of back-up tapes that potentially contained
responsive e-mails.
Similarly, in National Association of Radiation Survivors v.
Turnage, the defendant Veteran’s Administration not only undertook to destroy
potentially discoverable paper files during the pendency of the litigation, but also
persistently failed to produce certain computer data which was clearly responsive to a
number of discovery requests propounded by the plaintiff class.
Throughout the
litigation, the defendant falsely insisted that the information sought by the plaintiffs was
not stored on computer but was obtainable only through a manual review of millions of
claim files.
Worse than the failure to produce electronic information is the all-too-common practice of destroying potentially responsive and relevant electronic information. In one illustrative TLPJ case, a consumer deception class action, two days after the complaint was filed, TLPJ learned that one of the defendants in the case (a large, well-known financial institution) had placed literally dozens of garbage bags of documents in a dumpster. One of the bags was recovered by an employee of a business neighboring the defendant, who had read about the lawsuit in a newspaper. The bag proved to be filled with documents related to the case. The only sanction visited upon the defendant for this conduct was the entry of an order prohibiting further destruction of documents. Unfortunately, this defendant continued its stonewalling practices with its electronic documents. Several years further into the litigation, a defense witness revealed in a deposition that the defendant had systematically destroyed a great many highly relevant electronic documents, mostly fields of data from a database relating to the transactions at issue. (This revelation contradicted the company’s previous sworn interrogatory answers and violated the court’s order prohibiting further destruction of documents.) The information was never recovered, and made it much more difficult for the plaintiffs to prove their case (although we did ultimately succeed in doing so).
Even where unintentional, as one court found, a “haphazard and uncoordinated
approach to document retention indisputably denies its party opponents potential
evidence to establish facts in dispute.”
A startling 68 percent of respondents to the
ABA survey in 2000 said their clients rarely or never took steps to stop automatic
overwriting of electronic data, even after notice of a filed lawsuit.
For example, in
United States v. Koch Industries, Inc., the defendant in a False Claims Act case
destroyed computer tapes “at a time when they should have been preserved as potentially
relevant evidence in imminent or ongoing litigation.”
Although no purposeful evasion
could be proven, the court found the defendant negligent in its lackadaisical approach to
preserving information for pending litigation which allowed computer tapes to be
routinely scratched by company librarians.
In short, TLPJ believes that rumors of the pervasive use of excessive electronic
discovery requests have been greatly exaggerated. There is no empirical evidence that
electronic discovery has been particularly burdensome when compared to paper
discovery, or that the costs of electronic discovery exceed its undeniable benefits. Thus,
initial proposals to limit or impede the availability of electronic discovery – such as
proposed cost-shifting measures – are unjustified. Extrapolating from prior empirical
studies about discovery generally and anecdotal evidence, moreover, we believe that the
stonewalling problems rampant in traditional discovery are also widespread in the
context of electronic discovery. In fact, the ABA survey suggests that widespread
unpreparedness and ignorance in the corporate community with respect to electronic
discovery may exacerbate the problem of inadequate discovery responses. In any event,
until the problems of electronic discovery are well-documented empirically, changes to
the civil rules to address electronic discovery are unwarranted.
IV. Rule Changes are Unnecessary Because Existing Civil Rules Appropriately Allow Courts to Address Discovery Issues on a Case-by-Case Basis
Like the resolution of all discovery disputes, resolution of discovery disputes
over electronic information are and should be fact-specific and context-driven. No rule
or rulemaking body can predict each and every context in which discovery problems
might arise.
When they do arise, courts have long been adept at making sure the
burdens and costs of discovery are allocated fairly and have explicit rules on which to
rely in doing so.
Within the framework of the existing civil rules, therefore, judges are
fully equipped to exercise their discretion on the basis of the totality of circumstances in
each case, even in this age of electronic information.
Rule changes should not attempt
to curtail judges’ abilities to exercise sound discretion on a case-by-case basis.
In some instances, discovery of information in electronic media may be less
costly and burdensome than discovery of information from paper files. Keyword
searches on electronic files may make searches more efficient as compared to a manual
search through voluminous paper files conducted page by page.
In State Farm Mutual
Auto. Ins. Co. v. Engelke, for example, State Farm claimed that providing information
about similar lawsuits from the previous five years would impose on it undue burden
because it would require the full-time effort of 27 people for one year to find the
information in its paper files.
However, cross examination of a State Farm employee
revealed that the information was readily available in a computer database, and the court
rejected State Farm’s claims of burden.
Technology created to monitor the substance
of e-mails to ensure company e-mail policies are followed may someday be an easy way
to find e-mails relevant to litigation.
In addition, in some cases, greater costs of
searching through electronic media may be offset by lower costs of photocopying,
transporting, and organizing electronic documents for trial.
The relative burden on the producing party as compared to the benefits to the
requesting party will also depend on such factors as what type of electronic data is
requested (whether it is active data, embedded data, back-up data, deleted files, etc.),
whether the producing party otherwise has reason to retrieve the information (to prepare
an expert, for example), the scope and specificity of the request, and whether alternative
forms or sources of the evidence exist. And, in some cases, the burden and costs a
producing party faces when confronted with an electronic discovery request may be the
result of a peculiarly cumbersome computer system employed by the producing party, a
cost not within the requesting party’s control.
Under existing rules, courts are permitted to take into account these and other
circumstances when asked to resolve what electronic discovery should and should not be
allowed. Courts, in fact, have begun to develop multi-factored analyses by which to
balance the costs and benefits of electronic discovery in each case.
TLPJ believes that
rules cannot be fashioned to accommodate every competing concern that may arise in
this area, particularly since technology and ways of organizing and searching for
electronic data continue to evolve. We especially worry that, by giving short shrift to
individualized determinations, new rules would actually undermine the fair
administration of justice and the successful prosecution of meritorious claims.
Therefore, we believe that new rules for electronic discovery are unnecessary at best and
harmful to the civil justice system at worst.
V. Conclusion
The widespread use and reliance on electronic information in this country and the world has indisputably changed the way we litigate. Discovery, in particular, has changed because the information we seek to prove our claims is now more likely to be in electronic, rather than paper, form. However, simply because we are embarking on unfamiliar terrain should not, in and of itself, lead us to conclude that rule changes are appropriate or necessary. No empirical evidence suggests that electronic discovery has imposed too great a burden, and nothing suggests that courts are now ill-equipped to handle discovery disputes in the digital age. Today’s allegations of runaway costs from electronic discovery are no more supported by evidence than yesterday’s allegations that discovery in general was overly burdensome. TLPJ therefore urges the Advisory Committee to reject proposals to change the rules, particularly those which would place additional restrictions on discovery of electronic information.
Please direct any questions regarding these comments to TLPJ Staff Attorney Victoria W. Ni, who can be reached at (510) 622-8150, (510) 622-8155 (fax), or at vni@tlpj.org, and/or to Staff Attorney F. Paul Bland, who can be reached at (202) 797-8600, (202) 232-7203 (fax), or at pbland@tlpj.org.
Thank you very much.
Sincerely,
F. Paul Bland
Staff Attorney
Victoria W. Ni
Staff Attorney