By Bart R. Valdes, Esq. on behalf of the Electronic Discovery and Digital Evidence Committee, Business Law Section of the Florida Bar
The use of multiple electronic devices, as well as automated systems, and integrated technology, is commonplace in today’s world. Almost everything that we do in our day-to-day routines generates some kind of data, whether it is driving a car, buying lunch on a credit card, buying a gift for someone on-line, or even using modern kitchen appliances. To paraphrase a quote by the Co-Founder of Priceline, Jay Walker, the amount of data processing that was done in just the last two years is greater than the total amount of data processing done in the last 3000 years. As the amount of data collected, processed, and retained increases, the proverbial “haystack” becomes larger and larger. As a result, finding the “needle” in that haystack becomes an even more challenging, potentially costly, and time-consuming task.
It is for this reason that the nature and scope of discovery in civil litigation can—and often does—entail large amounts of electronically stored information (“ESI”). In addition to traditional e-mails, spreadsheets, and databases, gathering useable data in electronic formats from other sources of ESI can be very important. Further, relevant ESI may be received, maintained and stored not only by parties but also by non-parties. The deposition of a custodian of ESI is often important to effectively utilizing such information in a case.
Find Out Where To Look For What You Need And Learn Who To Ask About ESI.
“The half of knowledge is to know where to find knowledge.” These words sit above the entrance to the Dodd Hall library on the campus of Florida State University. Although these words were placed there almost 100 years ago, these words are even more applicable today given that there are estimates that the average person has five devices with an internet connection.
As a result, it is important to seek out, research and understand what, where, when and how people and companies (and the computers and devices they use) generate, use and store ESI. If you are dealing with the deposition of the corporate representative of a party, consider sending out interrogatories well before noticing the deposition in an attempt to get more information on how and where ESI is used and stored. As regards non-parties, it may be helpful to consult other resources, such as talking with other attorneys who have dealt with the non-party, seeking out technology blogs, articles or on-line resources, or doing a Westlaw or Florida Law Weekly search to see if any discovery orders can provide guidance, before drafting the subpoena so that you can designate the correct topics and seek the appropriate documents.
Consult An Expert To Help Draft the Notice Of Deposition Or Subpoena.
Many attorneys do not possess extensive knowledge or expertise relating to computer science, electronics, integrated technology or other contemporary information sciences. In other instances, an attorney may simply lack the specialized knowledge of the specific equipment, hardware, processes, or software used by various businesses. If you do not know how technology is integrated, or how data and ESI are used, stored or recorded, then there is the risk that you will either overlook critical ESI or fail to get the right person to testify as to such ESI. The result is that you may not get the evidence that you need or you will get it in a format that is not admissible at trial. Therefore, it is often helpful, or even necessary, to consult an ESI or digital evidence expert in the drafting process of the notice of deposition or subpoena.
An expert can assist in providing ideas as to what topics should be included in the notice of deposition or subpoena. Depending on the particular discovery needs in any given case, a qualified expert can recommend what ESI to seek and how to appropriately phrase the requests for ESI in the document request. Further, the expert can help you draft specific questions to be asked and explain how the answers, or areas of testimony, may impact certain claims or defenses.
Depose the Appropriate Person as the Records Custodian.
Relying on the deposition testimony of a records custodian who has no familiarity with, or did not even search for, the ESI of an entity will be, at best, a waste of time, and at worst, borderline malpractice. It is important to test and confirm the knowledge of the witness to ensure that the appropriate individual has been produced.
In a case involving ESI, topics about which a records custodian should be able to testify may include:
- the nature, structure, and format of the information stored in a database or system;
- the manner or method in which the ESI can be searched and analyzed;
- the duplication and export capabilities of each database or system (especially when metadata is sought);
- the ability to search and export potentially responsive data from all media to be searched;
- the identity of current or former employees who may be in possession of media or ESI relating to the issues in the case; and
- the cost and burden of producing ESI if they do not produce it at the deposition.
When dealing with non-parties, it may be beneficial to talk with counsel for the non-party records custodian before the deposition to ensure that the appropriate person is produced. Counsel for the non-party may instruct the records custodian to consult with other people within the organization, which will assist the custodian in providing adequate and accurate testimony. Further, you may be able to make arrangements for more than one person to appear at the deposition on behalf of the entity so that all questions can be answered.
Remember: Authentication and Admissibility.
Throughout the entire litigation process, it is important to continually consider the authentication and the admissibility of ESI produced by all parties and non-parties. The savvy practitioner will ask the necessary questions to provide for the ultimate admissibility of the ESI. Whether you are seeking to rely on some exception to hearsay (such as the business records exception) or argue that the data produced is simply not hearsay, the time to develop the facts to support that argument is at the deposition (and not at trial). Also, when ESI is produced, it must be produced in a useable manner or format. This may be different than its “native” or original format.
Some examples of questions to consider asking are as follows:
- How secure is the ESI or data and what is necessary to access and change the data?
- Whether security measures are in place to protect the ESI from being modified?
- Whether the ESI is generated by a person or is system generated data?
- Whether the distinctive characteristics or circumstances surrounding the ESI indicate to the deponent that the ESI is what it purports to be?
- Whether there are processes or systems in place ensure that the ESI produced is an accurate duplication of the original data or ESI?
Depending on the situation, the records custodian or corporate representative, needs to be asked all of the questions to properly authenticate the ESI and provide a reasonable basis for its admission as evidence at trial or on summary judgment.