Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.
There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it. I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it. Ummmm, no.
My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply. Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.
A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI). In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in “native format.” (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).
The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . . :
printed out responsive emails and provided photocopies of certain portions of those emails to defendants. Additionally, [one plaintiff] provided the content of several text message exchanges and Facebook posts by transcribing those messages on loose-leaf paper.
The Court granted the motion to compel.
Initially, I assumed that the producing parties must have been acting pro se (without counsel) because there is just no way that a lawyer would produce text messages and Facebook posts that were “transcribed” on “loose-leaf paper.” Upon closer review of the opinion, though, it appears that all parties were represented. Clearly, I am missing something about the course of events that led a party to produce ESI in this “format” (is loose-leaf paper even considered a “format”?).
What matters, though, is that employers and their counsel be diligent in their efforts to preserve all potentially relevant evidence, including text messages and social-media content, and to preserve it in its original form (native format). Preservation is the first step. Maybe we can work on our production skills after that. I’ll keep my fingers crossed.
Wellin v. Wellin, No. 2:13-cv-1831-DCN, 2014 U.S. Dist. LEXIS 95027 (D.S.C. July 14, 2014).
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