In highly contested cases, serious concerns may arise that opposing parties may delete or modify electronically stored information (ESI) before e-discovery. To ensure that adequate preservation measures are taken beyond just filing a complaint and attaching a duty to preserve, legal teams should try and expedite the e-discovery process. With a showing of good cause by the moving party, courts will grant discovery before 26(f) conferences. In United Factory Furniture Corp. v. Alterwitz that is exactly what the plaintiffs did.
Within the complaint, the plaintiff, United Factory Furniture Corp. (UFFC), alleged among other things that the defendant's, Alterwitz, former employees manipulated and destroyed numerous records during and after their employment via a “back door" from the defendant's personal computers. The plaintiff believed that highly relevant information remained on the defendant's personal computers.
Based on the defendant's history of tampering with ESI, the plaintiff asserted that “it is highly likely that the defendants will destroy…evidence" on the defendant's personal computers. To protect this highly relevant information the plaintiff motioned the court through Federal Rule of Civil Procedure (FRCP) 26(f) conferences to expedite the discovery of the defendant's personal computers and “enter a mirror-imaging order to allow a computer forensics expert to mirror-image defendants' computer equipment."
Under FRCP 26(d), “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)." The court did note two exceptions to FRCP 26(d), which permits the court to expedite discovery before FRCP 26(f) conferences:
- 1. A proceeding excused from initial disclosure under 26(a)(1)(B)
- 2. When authorized by the court upon a showing of “good cause"
Since exception #1 did not apply, the court utilized a balancing test to identify if “good cause" existed in UFFC. The court determines that “good cause" exists if the “consideration for the administration of justice, outweighs the prejudice to the responding party." The court in UFFC ruled that good cause existed and granted plaintiff's motion to order mirror imaging of defendants' personal computers based on three primary considerations:
- 1. The plaintiff's assertions that (a) the defendant had access to the plaintiff's computer server, (b) the defendant deleted the plaintiff's files and other relevant information, and subsequently (c) evidence of the defendant's conduct could be easily erased on the defendant's personal computers
- 2. Imaging the defendant's personal computers would not lead to any overly burdensome expenses since the plaintiff would be responsible for covering the costs
- 3. The defendant's privacy would be maintained based on a third-party expert conducting the mirror imaging
THE E-DISCOVERY BEAT'S TAKE
Be proactive. Be proactive. Be proactive.
Litigation usually boils down to reacting to your opponent's actions. UFFC is a prime example of the benefits reaped by having a proactive mentality and approach. Parties can successfully safeguard and protect the foundation of their claim/defense (i.e. loss of smoking gun evidence) by arming their legal teams with access and the ability to identify relevant information required for supporting their motions to the court. In too many cases, moving parties file motions (e.g. protective orders) without adequate evidence to fulfill their burden to prove that the benefit of the motion outweighs the burden/prejudice to the responding party.
Advanced e-discovery technology, like data mapping, in-place early case assessment (ECA) and targeted collection applications, will empower attorneys to learn more about their cases sooner and as a result will allow them to be proactive in e-discovery.
To learn more about e-discovery technologies that enable legal teams to more proactively manage the discovery process, click here.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.