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Section Review

E-Discovery Practice Alert: Massachusetts Litigators Must be Prepared to Address the Inevitable Intersection of Electronically Stored Information, Recently Issued Superior Court Standing Order 1-09 and Amended Rule 9-a

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

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2.  ESI resides in locations in addition to emails (e.g. cell phones, PDAs, GPS).

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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

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