The near-universal adoption of computers, tablets, and smartphones has led to a corresponding rise in the importance of eDiscovery in litigation (and in the shrinking of our attention spans).
Traditional discovery rules and processes for paper-based records do not jibe with the high volume of electronically stored information (ESI) in litigation today. The ease with which electronic records can be created and shared means legal teams may have hundreds or thousands of custodians to inspect, and millions of documents to review.
The discovery process was remade in the 1990s when many workers began to have computers on their desks and conduct business over email and through software like Microsoft Office. Lawyers began to drown in ESI during discovery, but had little guidance on how to handle it. In response, the federal courts amended the Federal Rules of Civil Procedure (FRCP) in 2006 to adopt new rules governing the discovery of ESI.
These new rules facilitated a fair, cost-efficient, and timely exchange of ESI between parties in discovery. However, perhaps recognizing the rapid iteration of technology, the FRCP do not go into granular details about specific sources of ESI. Instead, the rules instruct parties to preserve all relevant ESI once they reasonably anticipate the possibility of litigation. Preservation rules prevent ESI from being modified or deleted in the ordinary course of business, which could lead to spoliation claims.
Understanding Key eDiscovery Regulations: The Federal Rules of Civil Procedure
The FRCP were first adopted in 1938 to bring civil litigation procedures in federal courts closer to state practice after many states had merged their courts of law and equity or allowed courts of general jurisdiction to hear both legal and equitable claims. The FRCP also shifted federal civil litigation away from traditional formal requirements that obligated litigants to use “magic words” to state a cause of action and towards modern notice pleading requirements that required litigants to state allegations sufficient to put the opposing side on notice of a litigant’s claims.
The FRCP are broken down into several titles, or categories, of rules that govern matters, such as the commencement of lawsuits, drafting of pleadings and motions, naming of parties, discovery, trial, and post-trial proceedings. The key rules in the FRCP that regulate the eDiscovery process include:
- FRCP 26, which establishes the scope of discovery as including any nonprivileged matter relevant to any party’s claim or defense and proportional to the needs of the case, and clarifies that discoverable evidence need not be admissible at trial. As for ESI, the rule exempts parties from producing ESI that is not reasonably accessible because of undue burden or cost
- FRCP 34, which permits requesting parties to inspect or copy ESI stored in any medium that can be accessed directly or through translation into a usable form. Parties must produce ESI as kept in the usual course of business, in a form that it is ordinarily maintained, or in a reasonably usable form. Parties need not produce ESI in more than one format
- FRCP 37, which allows federal courts to impose sanctions for failing to obey a discovery order, including providing an adverse inference instruction to a jury if a party intentionally spoliated ESI
Applying the FRCP to Today’s Data Sources and ESI Types
Today, there are thousands of ESI types. Although some formats, like emails, PDFs, or Word documents, are more prevalent than others, many software products store data in a proprietary file format. Even software that can convert its data into a universal file format like a PDF may not transfer critical metadata into the file, such as author identity or revision history, during the conversion process.
Legal teams have faced challenges when gathering, organizing, and producing ESI in many data formats. Fortunately, new eDiscovery tools have made it easier to export, import, and organize ESI to facilitate the document review process while preserving the integrity of the files and their metadata, allowing attorneys to avoid potential spoliation sanctions under the FRCP.
Because the FRCP do not not expressly identify sources of ESI that parties must produce, businesses and litigants have a responsibility to identify all sources of ESI that they possess and to develop policies and procedures to facilitate the eDiscovery process should they face litigation. Parties should also ensure that their document retention and destruction policies won’t inadvertently lead to the loss of relevant ESI.
Given the FRCP’s broad scope for discovery, businesses should be ready to produce ESI from sources such as:
- Social media and online communications: Many businesses use social media to communicate with customers, partners/suppliers, or investors. Company employees may also discuss work-related matters through social media, including on their personal accounts
- Cloud storage: Businesses should identify what cloud storage accounts employees use to store work-related materials
- Collaboration platforms: Companies that use collaboration platforms such as Slack or Microsoft Teams may need to turn over internal communications relevant to a litigation matter
- Internet-of-Things devices: IoT devices, like Amazon Echo smart speakers or Google Nest thermostats, may also produce relevant ESI
- Mobile devices and messaging apps: Companies must identify what devices workers use to communicate about work-related matters and ensure they capture ESI from them during discovery, even if workers are talking about work-related matters in applications where they also discuss personal matters, like WhatsApp or iMessage.
The Future of eDiscovery Regulations: Potential Implications of AI and for FRCP
Although new technologies will continue to increase the number of data sources for eDiscovery, there may be no more significant upheaval to eDiscovery in the coming years than businesses' adoption of AI technology. Both the outputs of large language models and the inputs users provide to AI to generate the outputs may become discoverable in litigation.
Additionally, AI has the potential to make the collection, organization, and review of ESI quicker and more cost-effective than today’s eDiscovery solutions. Under the FRCP, parties may not be required to produce ESI if they can show that production is infeasible because of undue burden or cost. However, courts have become increasingly unreceptive to parties’ complaints about the burdens of producing ESI. AI-powered eDiscovery tools may further undercut a party’s claim that producing ESI would be too costly and burdensome.
Finally, as if AI-generated content wasn’t already problematic enough for society, it could pose significant challenges to litigants and courts seeking to assess the authenticity and reliability of documents produced during discovery.
Conclusion
The Federal Rules of Civil Procedure obligate litigants to produce discovery in electronically stored formats. The FRCP’s eDiscovery rules aim to facilitate a fair, efficient, and cost-effective exchange of ESI.
Courts will continue interpreting and enforcing the FRCP’s eDiscovery rules in response to changes in the technology landscape. The rules will likely remain flexible so as not to exclude certain kinds of ESI as new technologies develop.
However, federal courts may need to consider revising the FRCP’s eDiscovery rules soon to address more seismic shifts in technology, including the adoption of artificial intelligence tools that not only provide a new source of ESI but also offer a solution that both helps to facilitate the eDiscovery process and could wreak havoc to it.
