drawing boardToday was ostensibly the last day for public comment on the proposed amendments to the Federal Rules of Civil Procedure.  The good news for other procrastinators is that the submission deadline has been extended to accommodate scheduled website maintenance,  The new deadline for submitting public comments is 11:59 PM ET on Tuesday, February 18, 2014.  Over 1,600 comments have been submitted, and I’ve been trying to wade through them, unsurprised at the deep division between plaintiffs and corporate interests.  I can’t recall another time when so much has been spent by corporate lobbyists to influence the civil rulemaking process.  Clearly, corporate America expects a bigger payoff from these proposed amendments than I do.

Notwithstanding their strengths, there are aspects of the proposed amendments that should go back to the drawing board.  Many commentators focus on problems with Proposed Rule 26 and it’s efforts to narrow the scope of discovery.  Some are incensed that proposed Rule 37(e) offers insufficient immunity from sanctions for spoliation, choosing to ignore the fact that the incidence of spoliation sanctions in federal court is historically less than the national incidence of death by lightning strike.  Ironically, those grousing the loudest are the same white shoe-types who play golf in a thunderstorm.

I finally threw my comment on the pyre, I mean pile, or, at least I tried to do so; but, the submission web page was indeed shut down for website maintenance.  That gave me time to solicit your input, dear reader, while there’s still a chance to tweak my comments if you find I’ve made a mess of it.  Here’s what I’m planning to submit:

To the Rules Committee:

I am a trial lawyer with 32 years of experience, as well as a legal educator, ESI Special Master, computer forensic examiner and electronic evidence consultant.  Daily, I grapple with electronic evidence issues for plaintiffs and defendants large and small. I speak here to the needs of all litigants, observed in my own study, practice and experience.  I do not speak for any group, client or institution.

Every day, more and more digital information is generated about the world and our part in it.  Much of this unprecedented assemblage of data serves as reliable evidence of human behavior and motive, helping to protect the just and prove the lie.  It will take competent counsel who are afforded effective access to ESI to make good use of it.

Discovery about Discovery is Essential to Efficiency
The notion that most digital evidence are documents, like those once sent through the mails or clamped into file folders, is a fallacy to which lawyers still cling.  Modern evidence is more data than documents, and the evidentiary import of that data hinges upon its context, in much the same way as a checked box on a paper form means nothing without context.  All ESI implicates some contextual information that describes it, ranging from a file’s name and location to complex database schemas assigning meaning to the ‘one’ or ‘zero’ indicating whether one may board a flight or secure a loan.  This is metadata, and data without metadata is information without context.

Metadata has enormous utility apart from its innate value as evidence.  Metadata enables us to organize, manage and make sense of digital evidence.  Metadata is the “glue” that holds some evidence together and the labels on the cans that keep us from grabbing dog food when we want soup.  Some metadata isn’t evidence bearing on claims or defenses, but it’s the electronic equivalent of the evidence bag, the date on the evidence label or the entry in the police property room log that helps us find the evidence and assure ourselves of its integrity.

  • Temporal and geolocation metadata—the “when” and “where” of ESI—is invaluable in accurately reconstructing events and questioning witnesses.
  • Messaging metadata enables the organization of e-mail into conversational threads properly ordered across time zones.
  • Discovering the nature of information systems, e.g., content and search capabilities, limits the need for scattershot requests and costly do-overs.  
  • New tools for data analysis use metadata to reduce the cost and burden of ESI review.

Further, much evidence no longer exists, awaiting discovery as tangible paper records once did. Instead, social networking content, web mail and business information are reports from databases, assembled on the fly from vast stores of fields and records.  Efficiently obtaining, using and authenticating this evidence necessitate discovering information about information systems, database organization and the forms in which information exists and can be exported. 

We are in a time of transition for ESI and the courts.  Most litigators poorly understand modern information systems and are confused and overwhelmed by e-discovery.  Yet they soldier on, steered by apprehension instead of expertise.  The results are costly and incompetent, manifested by, inter alia, the dissemination of senseless directives to “preserve everything,” the use of grossly under- or over-inclusive searches and the profligate practice of downgrading ESI to paper and paper-like images, making ESI less utile and complete for review and production. 

The standard practice of e-discovery is malpractice.  Parties cannot safely assume their opponent is competent to identify and produce responsive ESI.  Until e-discovery competence is commonplace, opponents must have the right to plumb processes and probe the nature, custody, condition, location and description of discoverable ESI.  Transparency of process is crucial to integrity of process.

To meet these challenges of modern practice (data versus documents, structured information and e-discovery incompetence), we must abandon our antipathy to what’s been dismissed as “discovery about discovery.”  Increasingly, it’s impossible to discover information that is relevant to a party’s claim or defense absent the ability to discover information that is not relevant to a party’s claim or defense; that is, discovery of metadata, systems and processes.

Proposed Amendment to FRCP Rule 26
The proposed amendment to FRCP Rule 26 removes the only language in the text of the Rules that expressly recognizes and protects a litigant’s need and right to explore beyond the strict confines of information “relevant to any party’s claim or defense” and inquire into the “existence, description, nature, custody, condition and location” of relevant information.  Though the language sought to be jettisoned doesn’t expressly speak to metadata, information systems, formats or transparency, it is the sole enabling provision in the Rules pertinent to these topics, and we step backward if we lose it.

Though it’s been suggested the Committee seeks to remove the metainformation language because the Committee regards the right to discover such information as manifest and obvious, I’ve already faced opponents who argue that the proposed amendments serve to bar inquiry into metadata, systems and processes.  The proposed amendment of Rule 26 will foster confusion about the propriety of meta-discovery just as meta-discovery is proving its ability to promote efficiency, cost-effectiveness and competence in e-discovery.

I urge the Committee to please restore the following language to Rule 26:

— including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.  For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.

I ask that the Committee go further and use the Committee Notes—or, better still, the Rules themselves—to make clear that use of the descriptor, “relevant to any party’s claim or defense” does not limit or curtail:

  1. Discovery of relevant or functional metainformation;
  2. Inquiry into a party’s methods and processes used to store, identify, collect, process, search, review or produce information; or
  3. Inquiry into forms of information and production or the use, operation and structure of relevant information systems.

Proposed Amendment to FRCP Rule 30
The need to gather information about information systems so the parties can narrowly and effectively seek discovery of information systems and databases is also at odds with the Committee’s proposal to reduce the number of depositions without leave of court.  Though many commentators oppose the proposed amendment, if the proposal stands, I urge the Committee to recast the proposed amendment to Rule 30 so as to exempt 30(b)(6) depositions as counting toward the reduced limit of five depositions.  

In large enterprises, it’s common for responsive data to reside in multiple databases, necessitating that the database administrator for each system give evidence about,  e.g., the standard fields and reporting capabilities of the system they administer.  This is customarily achieved using Rule 30(b)(6) notices and  is rarely abused in my experience.  But, the proposed amendment would force parties to choose between depositions essential to discovery on the merits and depositions essential to efficient and cost-effective e-discovery about implicated information systems.  Exempting Rule 30(b)(6) depositions would not add potential for abuse, and any abuse that might be attempted could be readily quashed.

Protect Essential Metadiscovery
Electronic evidence and the law is a pairing that can be delayed but not denied.  We will never be less interconnected, less apt to generate data or, in any sense, less enfolded within a growing penumbra of digital information tied to a huge, durable digital tail.  Your Committee must fashion Rules that help litigants solve the problems they face now and in the future, not those of a bygone era.  Protecting transparency of process and inquiry into information systems and metainformation is a wise and practical step forward.

 Thank you.

…and thank you, dear readers, for the helpful comments and suggestions you always kindly share with me here.