E-Discovery in Personal Injury: Can a Caveman Do It?
On March 23, 2005, a lethal explosion and fire occurred at BP’s Texas City refinery. Fifteen people perished and hundreds more were injured. Some of Texas’ finest legal talent assembled the BP Plaintiffs’ Steering Committee to unmask the root causes of this massive tragedy.
The scale of written discovery grew exponentially when e-discovery emerged as a tactical focal point early in the litigation.
“Team work," “commitment" and “discipline" are fair words to describe the BP Steering Committee’s efforts generally. But it is also fair to include another gender neutral term when it came to e-discovery- “caveman." Most of the members comprising the committee were reared in the discipline of “paper discovery." E-discovery, however, is a peculiar beast that necessarily involves jargon like “metadata," “active, backup, and residual data," “bytes, megabytes, gigabytes and terabytes," “deduping" and much more - terms more or less foreign (and ominous) to any personal injury litigator trained in the era of paper discovery. Complicating matters further was the fact that Texas law provides little direct precedent to guide any caveman litigator. E-discovery law in Texas is nothing shy of a frontier. Presently, no Texas state court case addresses the rule of civil procedure specifically sanctioning e-discovery. Tex. R. Civ. Pro. 196.4. The website for the State Bar of Texas, Computer and Technology Section, has posted an invitation to share e-discovery experiences given there are “no reported cases on the rule."
There may be one anecdotal reason for the lack of law regarding Texas e-discovery: practioners are not defining its contours and testing its boundaries in the trial court. The caveman knows of fire and perceives its basic utility, but he chooses to be slow in exploiting it.
The litigation spawned by the Texas City disaster, however, provided a perfect forum to spark a fire on this e-frontier. A tremendous effort in e-discovery in that case only proved the simple truths e-discovery experts have been cajoling us to understand for years - e-discovery matters, be careful what you ask for, cooperation between opposing counsel is required ... and even the caveman can do it.
A.Confirmation of E-Truths
If this paper were to fully develop each topic identified below, the citations would swallow the text and, even then, inadvertent copyright infringement would occur. That is, e-discovery experts have been preaching these principles for years. Practical experience in this litigation only confirmed the precepts of those sermons. Three excellent resources that elaborate on most of the elements of this outline include Electronic Discovery: Legal Issues and Practical Challenges by David Chaumette, May 4, 2007, Electronic Discovery and Digital Evidence Institute 2007, Texas Bar CLE, State Bar of Texas 2007, and www.craigball.com. Lesson confirmed: Start your e-discovery library and read it.
- The Punchline.
The e-discovery efforts in BP produced spectacular yields, both in terms of volume and quality. The appendix to this paper includes the motion practice used toward that end. Collyn Peddie, a member of the BP Plaintiffs’ Steering Committee, conducted the Committee’s motion practice. Lesson confirmed: The motions and briefs define and argue what must be some of the most sensitive e-discovery issues.
The scale of the BP explosion case warranted consulting with an expert and pioneer in e-discovery, Craig Ball. Experts in this area serve a spectrum of functions, from holding the caveman’s hand in teaching the basics to defining goals. Not every case warrants this approach, and experience will breed self-sufficiency over time. Lesson confirmed: Experts help, but the litigator must carry the water.
- Ask for “E" in the First Place.
If your definition of “document" does not include electronically stored or transmitted information (“ESI’,) and you have otherwise not specifically asked for particular electronically stored information, then you have not requested e-discovery. See Appendix.Lesson confirmed: Ensure your forms and definitions for requests for production, subpoenas, and subpoenas duces tecum include language that specifically requests ESI.
- First Rule of E-Discovery: Meet and Confer.
Without doubt, defense lawyers are under an obligation to know the basic structure of their client’s data systems and procedures for retention and backup of that data. See Electronic Discovery: Legal Issues and Practical Challenges. A corollary should be that plaintiff’s lawyers serve as compliance officers in this regard. It is paramount to encourage (or force) an early dialogue with defense lawyers to gain from them the basic data system construct so that e-discovery can be appropriately tailored. “Meet and confer" sessions will beget more “meet and confer" sessions, but this is a good thing. Cooperation is a necessary ingredient, and early dialogue is a must. See Appendix.Lesson confirmed: Before discovery is served, arrange enough meetings with your opposition to understand the data construct and related policies and procedures.
- Know thy media, and quickly.
Now you have asked for ESI either generally or specifically ... so what! Such evidence could live in any combination of three distinct worlds - active data, backup data, or residual data. Through numerous extensive meetings with defense counsel early in the litigation and in the subsequent motion practice, the Committee learned from where the yield of ESI should come. In short, massive amounts of responsive information lived both in the world of active data and backup data. See Appendix.Lesson confirmed: The discoverability of active versus backup data is a major battleground of e-discovery. Before you know whether backup data may contain responsive and relevant information, you must know how, where, and why the backup data is kept.
- Be Careful What You Ask For.
The juice to squeeze ratio in BP was enormous. Once lawyer cooperation met at the junction of court intervention, BP produced several million pages of responsive electronically stored information. A large percentage of the hot documents of the case were found in these pages. See Appendix.Lesson confirmed: Most lawsuits do not warrant discovering millions of pages of documents. All lawsuits should involve some degree of discovering ESI.
- Custodians and Searches.
Plaintiffs are entitled to know the methodology defendants employ to search for responsive documents. Where (covered above), how (e.g. word searches), and who (custodians) are very important details. In BP, the Committee knew the search terms for word searches to be utilized, but the Committee never agreed it was appropriate or otherwise. Simply put, defendants are in the best position to know the vocabulary of the issues, as it is their business. Lesson confirmed: Plaintiffs should know the search terms defendants use but should remain leery of blessing it. Such blessings may curse the case by allowing certain issues, words and/or documents to be passed over.
- “Reasonable" vs. “Extraordinary" Retrieval.
Rule 196.4 of the Texas Rules of Civil Procedure require a defendant to use “reasonable" efforts to comply with e-discovery. This shall be done at defendant’s expense. Assuming the lawyers have collaborated in tailoring the search for ESI, the next natural step for defendant will be to declare that “size matters" in an “extraordinary" way. Defendants may conduct thorough searches for ESI, but defendants will attempt to shift some or all of the cost to the plaintiffs because such steps are “extraordinary." The appendix demonstrates the BP “size matters" argument to conclusion. Lesson confirmed: If a plaintiff’s lawyer asked The Magic 8 ball whether the defendant will try to shift the cost of e-discovery, the answer will be “Absolutely" in all cases where the plaintiff’s lawyer is proficient in e-discovery.
Conducting e-discovery is time consuming and tedious. The yield from the effort can be profound. Most law on the topic (secondary authority for Texas cases) arises from commercial disputes. Personal injury lawyers in Texas have a fantastic opportunity to contribute meaningful precedent in the most important aspect of discovery. A caveman can do it.