An ever-increasing concern in litigation is electronic discovery (also known as “e-discovery.”). Despite the monumental importance (and potentially monumental expense) of e-discovery, our courts have not offered substantial guidance on this issue. While this is likely to change as attorneys, insurers, and businesses begin to learn about the significance of e-discovery, it is essential that everyone involved in the litigation process (attorneys, insurers, and clients) understand the duties and obligations imposed by the discovery rules, especially because these rules apply even before a lawsuit is commenced.
All electronic data is potentially discoverable. This includes emails, information stored on servers or back-up devices, and other data that is capable of recovery or restoration, even if deleted. Courts may consider whether the cost of producing such information should be shifted from the party possessing to the party requesting the information, but that does not to alter the obligation to preserve all electronic data once there is a reasonable likelihood of litigation. Thus, once it is believed that a lawsuit is likely to occur, the duty to preserve electronically stored information (“ESI”) arises. Serious adverse consequences may befall parties who fail to properly preserve discoverable electronic data, from preclusion of evidence and defenses, to outright dismissal of a claim. The developing case law makes clear that ESI obligations of parties to litigation will be strictly imposed by the court.
Once litigation is reasonably anticipated, entities likely to be involved should cease any routine document destruction, and place a “litigation hold” on documents in any form, taking all steps necessary to protect and preserve documents that are relevant or reasonably calculated to lead to the discovery of admissible evidence in the anticipated lawsuit. Typically, inaccessible back-up tapes (e.g., those typically maintained solely for the purpose of disaster recovery), are excused from this requirement, but if back-up tapes are accessible (i.e., actively used for information retrieval), the safe approach is to apply the litigation hold to them. These obligations apply to individuals, businesses, and their employees. Special care should be taken to preserve the documents of employees who are likely to play a significant role in existing or threatened litigation.
As previously mentioned, there is currently a dearth of precedent in Pennsylvania state courts regarding e-discovery. However, in a recent opinion, Judge Charles of the Lebanon County Court of Common Pleas gave an indication of how trial courts may evaluate disputes regarding e-discovery.
In Brooks v. Frattaroli, PICS Case No. 09-1709, Judge Charles recognized that "without question, discovery of ESI can provide unprecedented opportunities for determining truth and preventing fraud. . .on the other hand, unrestricted access to an opposing party's ESI creates tremendous potential for discovery abuse and invasion of privacy.” In attempting to strike a balanced approach that uses the truth gathering potential of ESI without abusing a litigant's legitimate expectation of privacy, Judge Charles set forth five factors that should be considered in evaluating e-discovery requests: (1) the scope of the request, (2) privacy and confidentiality concerns of the responding party, (3) the degree of cooperation the responding party has shown to the requesting party, (4) costs to the responding party and (5) the relationship between the e-discovery requests and plaintiff’s burden of proof.
As one of the rare decisions by a Pennsylvania trial court on e-discovery, it is expected that other courts will cite to the Brooks opinion in resolving e-discovery disputes before them.