By Daniel K. Gelb
Issues concerning electronic
discovery ("e-discovery") and its associated electronically stored
information ("ESI") are not concerns for litigants appearing only
before the federal courts which follow the Federal Rules of Civil
Procedure.1 Massachusetts litigators must also be aware
of how to properly handle pretrial discovery challenges relating to
ESI even though Massachusetts has not codified rules relating to
e-discovery.2
On January 12, 2009, the
Massachusetts Superior Court officially adopted Standing Order 1-09
("Standing Order"), directing litigants in all counties in the
Commonwealth of Massachusetts to adhere to new standards concerning
written discovery.3 In addition to the Standing Order,
on January 22, 2009, the Supreme Judicial Court approved an
amendment to Superior Court Rule 9A ("Rule 9A") that the Superior
Court submitted for approval on November 19, 2008. The amended
version of Rule 9A became effective on March 2,
2009.4
The following discusses the Standing
Order and why it should raise the awareness of litigators as to the
handling of ESI, especially when complex discovery issues in the
Massachusetts courts arise. The article also discusses why counsel
must be cognizant of how e-discovery may affect the
practice of litigation in light of the newly amended directives
contained in Rule 9A.
New Superior Court Standing
Order 1-09
Scope of
Discovery.
Section 1(b) of the Standing Order states that, "[t]his
rule is not intended to broaden or narrow the scope of discovery
permitted by the Massachusetts Rules of Civil Procedure." Although
the Standing Order is not intended to impact the scope of the
discovery permitted it is likely to impact the scope of
knowledge expected of counsel relating to ESI. Section 2 of the
Standing Order states that after having asserted an objection
"...the answer shall state either: (a) notwithstanding the
objection no information has been withheld from the answer, or (b)
information has been withheld from the answer because of the
objection. Where information has been withheld from the answer, the
objecting party shall describe the nature of the information
withheld and identify each objection asserted to justify the
withholding."
Interrogatories.
Counsel must be able
to
Litigators must be prepared to respond to
interrogatories seeking information involving ESI substantiating an
answer. If an answer places a client at risk of breaching the
attorney-client privilege or a privacy statute (e.g., HIPPA,
Gramm-Leach Bliley Act, laws governing trade secrets, etc.),
counsel must be aware of (1) the ESI at issue; (2) whether such ESI
is included in the answer to the interrogatory to properly
substantiate it; and (3) if inclusion of statements concerning ESI
in the answer would cause a client to violate a legal obligation.
explain the basis for an objection where ESI is sought as part
of an answer to an interrogatory. The Standing Order calls for the
objecting party to describe the nature of the information
withheld and to identify each objection asserted to justify the
withholding. The current litigation climate has become accustomed
to broadly asserting unnecessary objections upon which the Standing
Order has now placed limitations. Knowing how to articulate
e-discovery in order to satisfy the discovery obligations under the
Standing Order (and Mass. R. Civ. P. 33) is
essential.
Document
Requests.
Massachusetts does not
have codified rules of court procedure dedicated to the discovery
of ESI; however, it is beneficial for counsel to consult the
National Center for State Courts' Guidelines for State Trial Courts
Regarding Discovery of Electronically-Stored Information ("the
Guidelines").5 The reality for Massachusetts
practitioners is that the Standing Order will force litigators to
become more knowledgeable about what objections are considered
appropriate when responding to requests for production of documents
or to interrogatories - even in the absence of a specific rule
relating to ESI codified into the Massachusetts Rules of Civil
Procedure.
Section 3(c) of the
Standing Order does address an obligation to search for relevant
ESI to properly supplement an objection to
production:
...In the initial
written response, the responding party shall articulate with
clarity the scope of the search conducted or to be conducted. If
the scope of the search changes during production, the responding
party in the supplemental written response shall articulate with
clarity the change in scope. If the scope of the search does not
include all locations,
Section 3(a) of the Standing Order states that,
"[w]here a party serves a response to a request for production of
documents and things under Mass. R. Civ. P. 34 before production is
completed, the response may include general objections." Counsel
should not find too much comfort in this wording since the Standing
Order continues: "...where general objections are made, the
responding party shall prepare and serve a supplemental response no
later than 10 days after the completion of
production."including electronic storage locations,
where responsive documents or things reasonably might be found, the
responding party shall explain why these locations have been
excluded from the scope of the search. (Emphasis
added.)
Counsel will benefit
from consulting The Sedona Principles
The Standing Order does
not differentiate hard copy documents from ESI. As hard copy
documents become more obsolete, modern-day litigation will
inevitably involve discovery disputes over ESI. E-discovery issues
can be more complicated because discovery
existing
As mentioned above,
counsel should be careful as to whether such explanation may result
in divulging work product or attorney-client privileged
communications. Therefore, litigants that become aware that ESI
will likely be involved in a litigation should immediately enlist
the assistance of an e-discovery expert to determine the protocol
of review so counsel is not stuck between complying with the
Standing Order and breaching a privilege or violating a statute.
One possible mechanism to avoid such conflicts may be to meet and
confer with opposing counsel early on to develop an "e-discovery
action plan" similar to that contemplated under Fed. R. Civ. P.
26(f). In addition, if the parties cannot determine a "protocol"
for review of document and e-discovery that is mutually
satisfactory, counsel may want to consider addressing these
concerns with the Court in a Mass. R. Civ. P. 16 conference or
through motions (e.g. for a preservation order or a protective
order); however, opposing counsel should be diligent about not
burdening the Court with concerns that could be narrowed and
resolved by seeking out the appropriate resources (e.g.,
e-discovery expert or consultant).
®6 explain the search and review of
responsive documents. Practitioners should be weary of both
how and who reviewed a client's ESI so counsel is not placed in
the position of an "e-discovery witness" or compromising a legal
privilege. beyond the four corners of a document may be
responsive. Unlike hard copy documents, ESI possesses certain
characteristics such as meta data (i.e., data about "data") and
ephemeral or dormant data (e.g., information requiring digital
forensics to excavate).8 The more complex electronic
evidence becomes the more likely counsel will be required to
determine whether such information is subject to production. This
review process will require articulation of activity undertaken to
ensure compliance with the Standing
Order.
Recently Amended Superior
Court Rule 9A
The concept of
e-discovery as a general proposition is unique inasmuch as it is
inextricably tied to the procedural, substantive and management
aspects of practicing law. The recently amended Rule 9A invokes
this concept.
Rule 9A has been
significantly amended, in particular, with the inclusion of
provisions governing the use of technology
between parties to litigation. As of March 2, 2009,
Rule 9A now requires litigants to include email addresses (provided
one exists) for counsel or pro se litigants on papers pursuant to
sub-section (a)(6). Moreover, sub-section (b)(5)(i) governing
Summary Judgment (which should be read in its entirety) states, in
part, as follows9:
... the statement of
material facts shall be contemporaneously sent in electronic form
by email to all parties against whom summary judgment is sought in
order to facilitate the requirements of the following paragraph.
The statement of material facts in electronic form shall be sent as
an attachment to an email and shall be in Rich Text Format
(RTF)10 unless the parties agree to use another word
processing format.
(emphasis
added)
Counsel must be
conversant with the procedural, substantive and practice management
interplay with Rule 9A. Counsel should also be familiar with rules
that are particular to the Court's Business Litigation Session
("BLS") where large volumes of ESI will likely become central to
litigation (e.g. opposing counsel's obligation to prepare a
proposed joint Tracking Order for the Court's consideration and
endorsement).
Given the risks
associated with electronic transmission of legal documents, counsel
must isolate the
Counsel should recognize
that sub-sections (b)(5)(i) and (b)(5)(ii) differ from the format
of filing pleadings electronically in Federal Court matters. In
Federal Court, the Case Management/Electronic Case Filing
("CM/ECF") system managed by PACER calls for the Portable Document
Format ("PDF") created by Adobe Systems (and other software
vendors) to be uploaded to the system. Once the PDF formatted
pleading is uploaded to the ECF system, the Court then
electronically executes the service of the electronic file(s) to
all electronically registered parties to the respective
litigation.11
Rule 9A calls for
parties to electronically transmit files to one another on their
own. Counsel, therefore, should become familiar with how to
appropriately and prudently handle the transmission of electronic
documents when following Rule 9A to avoid potentially legal
exposure for a client by way of inadvertent production of ESI
containing attorney-client privileged information or work
product.
First, it is imperative
to realize that
Counsel must also be
aware of ESI that exists in electronic files such as text or images
that have been copied, cut and pasted into documents; and, the
identities of those who authored or last modified a file (e.g. in
MS Word, Corel WordPerfect or another word processing software
application). ESI may be transmitted without counsel being aware of
it. For example, one may accept track changes or "redlines" in a
summary judgment brief created by using MS Word and then email the
same to opposing counsel.
It is important to bear
in mind that the opposition may attempt to excavate data associated
with a particular electronic file transmitted by counsel. Counsel
should be aware of how to proactively prevent such conduct. This
may entail appropriate use of data "scrubbing" software. Scrubbing
can be explained as "...the process of taking a data set with
individually identifiable information, and removing or altering the
data in such a way that the usefulness of the data set is retained,
but the identification of individuals contained in that data set is
nearly impossible." 12
Scrubbing or "wiping"
software should
final version of a pleading issued to opposing
counsel. This is extremely important given that sub-section
(b)(5)(i) calls for transmittal of a summary judgment submitted to
the opposition in Rich Text Format "...unless the parties agree to
use another word processing format." Furthermore, subsection
(b)(2)(ii) directs parties opposing summary judgment to transmit
their pleadings electronically to the moving party with the
following proviso: "Where the obligation to send the statement of
material facts in electronic form has been excused, the response to
the statement of material facts may be in a separate
document."all electronic files have "digital fingerprints"
associated with them. Every edit, deletion, change and the like is
recoverable from a file unless one "scrubs" this confidential work
product from the document. Therefore, counsel must be sure to put
protocols in place in one's law practice that assures client
confidences and work product are not transmitted to opposing
counsel in an attachment to an email transmitting a pleading
pursuant to Rule 9A. However, the only ESI counsel
should scrub is related to counsel's own work product
and nothing else which could otherwise result in spoliation of
evidence. never be utilized to engage in the spoliation
of ESI or any evidence for that matter with the intent of, or even
inadvertent result of, gaining an unethical advantage in any
dispute or legal matter. Data or memory scrubbing software should
only be used to wipe out ESI that counsel or a party has
the right to scrub such as track changes contained in
an attorney's own work product being prepared for transmission
to opposing
counsel.
Conclusion
The Standing Order is
likely to influence the way counsel approach asserting and
challenging objections related to document review and production.
Moreover, the amendment to Rule 9A creates a heightened duty of
care when litigants communicate to one another via email (e.g. so
that there is no inadvertent disclosures of privileged and
protected information to opposing counsel).
The proliferation of
ESI's involvement in modern day litigation requires that litigants
and their lawyers take steps to act reasonably in order to avoid
unnecessary burden and expense. Counsel's understanding of
e-discovery and ESI will facilitate the e-discovery process,
including properly responding to discovery requests, asserting
objections, and effectively moving for court
orders.
Notes
1.
2. ESI resides in
locations in addition to emails (e.g. cell phones, PDAs,
GPS).
3.
4.
5.
6.
7.
8.
9.
10.
11. For information on
PACER and the CM/ECF system, see
http://pacer.psc.uscourts.gov/cgi-bin/cmecf/ecf-links.pl.
12.
See for example, Fed.R.Civ.P. 16, 26, 33, 34, 37
and 45.See Massachusetts Superior Court Standing Order 1-09
("Written Discovery") found at
http://www.mass.gov/courts/courtsandjudges/courts/superiorcourt/standing-order-1-09.pdf.See
Massachusetts Superior Court Rule 9A ("Civil Motions") found at
http://www.mass.gov/courts/sjc/amend-sup-ct-r-9a.html.See
generally, the Guidelines at
http://www.ncsconline.org/images/EDiscCCJGuidelinesFinal.pdf.See
www.thesedonaconference.org.See
http://www.law.upenn.edu/bll/archives/ulc/udoera/2007_final.htm.
See Columbia Pictures Indus. v. Bunnell et al, No. CV
06-1093FMCJCX (C.D. Cal. May 29, 2007).See sub-section
(b)(5)(i) of Rule 9A and other subsections governing email
transmission of pleadings found at
http://www.mass.gov/courts/courtsandjudges/courts/superiorcourt/rule9a.pdf.
See http://en.wikipedia.org/wiki/Rich_Text_Format ("Rich Text
Format (often abbreviated "RTF") is a document file format
developed by Microsoft in 1987 for cross-platform document
interchange.").See "Data Scrubbing" Wikipedia.org at
http://en.wikipedia.org/wiki/Data_scrubbingand
the Rules Relating to Discovery of Electronically Stored
Information authored by the National Conference of Commissioner on
Uniform State Laws.
7 Similar to the spirit of the
Guidelines, The Sedona Principles and the Rules Relating to
Discovery of Electronically Stored Information offer litigants
practical guidance on "best practices" when handling pretrial
challenges relating to ESI. The Sedona Principles, the Guidelines
and the Rules Relating to Discovery of Electronically Stored
Information are very helpful when articulating the review and
production of ESI. These resources help determine what is
"reasonable" conduct during discovery of ESI, and whether a good
faith objection exists. Asserting blanket objections could result
in a violation of Standing Order 1-09. Counsel must