Q & A Preparing for Discovery of Electronically Stored Information

Q&A
Preparing for Discovery of Electronically Stored Information 
Produced by Jane Perkins
National Health Law Program
September 20081
 
Q: We are preparing to file a lawsuit against our state Medicaid agency. I am 
struck by the amount of information that is created electronically. What steps 
should I take to make sure that we obtain relevant electronic information through 
discovery? 
 
A: You should prepare an e-discovery plan. This Q&A provides an overview to 
the relevant federal rules and discusses some important considerations when 
dealing with electronically stored information. 
 
Background
 
Twenty years ago, information was communicated and stored on paper. 
Personal computers and e-mail were novelties. Today, over 90 percent of all 
information is created using electronic formats. See The Sedona Conference Working 
Group Series, The Sedona Principles, Second Edition: Best Practices, 
Recommendations & Principles for Addressing Electronic Document Production at 1 (2d 
Ed. 2007) (The Sedona Principles, Second Edition). 
 
The emerging and ever-evolving electronic communication and storage mediums 
are revolutionizing how litigation must be conducted. A federal court judge in Colorado 
recently observed:
 
Courts now face the challenge of overseeing discovery at a time when potential 
access to electronically stored information is virtually limitless, and when the 
costs and burdens associated with full discovery could be more outcomedeterminative, as a practical matter, than the facts and substantive law.

Cache La Poudre Feeds v. Land O'Lakes, Inc., 244 F.R.D. 614, 620 (D. Colo. 2007).
 
The features of electronic information create special discovery challenges. 
These include, first, the sheer volume of electronic information. As compared with 
paper documents, electronic information is created, replicated and stored at significantly 
greater volumes. A single email can be replicated and sent to multiple recipients, who 
in turn forward the message. Information that can be stored on a single CD-ROM would 
fill a bank of file cabinets if stored on paper.
 
Second, electronically stored information (ESI) is persistent. ESI is more difficult 
to destroy than paper, which can be shredded. When a PC user deletes a file, the 
document is not destroyed. The influential case, Zubulake v. UBS Warburg, 217 F.R.D. 
309 (S.D.N.Y. 2003), explains this feature of ESI as follows:
 
The term ?deleted? is sticky in the context of electronic data. ?Deleting? a file does 
not actually erase that data from the computer?s storage devices. Rather, it 
simply finds the data?s entry in the disk directory and changes it to a ?not used? 
status?thus permitting the computer to write over the ?deleted? data. Until the 
computer writes over the deleted data, however, it may be recovered by 
searching the disk itself rather than the disk?s directory. Accordingly, many files 
are recoverable long after they have been deleted?even if neither the computer 
user nor the computer itself is aware of their existence. Such data is referred to 
as ?residual data.? Deleted data may also exist because it was backup up before 
it was deleted. Thus, it may reside on backup tapes or similar media. 
 
Id. at 313, n. 19 (internal quotes and citations omitted).
 
Third, ESI contains metadata. Metadata is additional information about the 
document that is not shown on the computer screen. Sometimes described as ?data 
about data,? metadata can be important in some cases because it includes information 
about who created the document and when and how the document was stored within 
the computer system. Examples of metadata for electronic documents include: a file?s 
name, location (e.g. path name); file format and size; file dates (e.g. creation date, date 
last modified); and file permissions (e.g. who can read the document, who can modify 
the document). 
 
Fourth, ESI raises issues with dispersion. For instance, when state Medicaid 
agencies receive requests for production of paper documents, they may achieve 
compliance by placing the documents in a cardboard box or file cabinet and then 
allowing the requester to review them. ESI on the other hand typically resides in 
multiple places?desktop hard drives, laptops, network servers, thumb drives, CDROMS, DVDs, and disaster back-up tapes. Moreover, the ESI may differ somewhat or 
significantly from one storage ?bin? to another.2

Finally, ESI raises issues with vocabulary. The creation and management of 
digital information has a vocabulary all its own. To put it another way, the phrase 
?computer geek? was not created in vacuum. 
 
Practice tip: Get familiar with the jargon, for example: 
 
ambient data, backfiles; boolean search; checksum; comic 
mode; dirty text; encoding; ethernet; forensic copy; jaz; legal 
hold; lossy compression; marginalia; metadata; off-line data; 
phase change; PDA, PMS (no, not that); RAID; slack space; 
spoliation; thin client; twiki (aka WikiWiki); yottabyte
 
If, by chance, you need help, then obtain: The Second Conference Glossary: EDiscovery & Digital Information Management (Second Ed. Dec. 2007):
http://www.thesedonaconference.org/dltForm?did=TSCGlossary_12_07.pdf.
 
The Federal Rules of Civil Procedure and E-Discovery
 
The Federal Rules of Civil Procedure were amended in 2006 explicitly to address 
electronically stored information: 3
 
A party may serve on any other party a request . . . to produce . . . the following 
items in the responding party?s possession, custody, or control: ? any 
designated documents or electronically stored information?including writings, 
drawings, graphs, charts, photographs, sound recordings, images, and other 
data or data compilations?stored in any medium from which information can be 
obtained either directly or, if necessary, after translation by the responding party 
into a reasonably usable form 
 
Fed. R. Civ. P. 34(a)(1)(A). 
 
According to the civil rules advisory committee, this amendment is ?intended to 
be broad enough to cover all current types of computer-based information, and flexible 
enough to encompass further changes and developments.? Fed. R. Civ. P. 34 advisory 
committee?s note (2006). Currently, this includes email (with attachments), web pages, 
word processing files, spreadsheets, presentations, voicemail, audio and video files, 
images, computer databases, and ?virtually anything that is stored on a computing 
device,? including on servers; desktops; laptops; networks; hard drives; flash drives; 
tapes, discs, and cartridges; back up or disaster recovery systems; mobile telephones;

and PDAs (personal digital assistants, or small hand-held computers). The Sedona 
Principles: Second Edition at 1.
 
Rule 34 allows the parties to designate the form in which ESI is to be produced. 
See Fed. R. Civ. P. 34(b)(1)(C). If the request does not specify a format, the 
information is to be produced in a form or forms in which it is ?ordinarily maintained or in 
a reasonably usable form or form.? Id. at 34(b)(2)(E). Compare Fed. R. Civ. P. 34 
advisory committee?s note (2006) (?If the responding party ordinarily maintains the 
information it is producing in a way that makes it searchable by electronic means, the 
information should not be produced in a form that removes or significantly degrades this 
feature.?).
 
Federal Rule of Civil Procedure 26 has also been amended to account for ESI. 
The Rule now includes ESI within the initial disclosures that the parties should make 
without awaiting a pretrial conference (see Rule 16). The Rule establishes a unique 
approach that requires the responding party to provide a copy or description of relevant 
ESI but excuses production of ESI that the responding party identifies as ?not 
reasonably accessible because of undue burden or cost.? See Fed. R. Civ. P. 
26(b)(2)(B). If the requesting party wants the information and cannot reach a 
compromise with the responding party, the requesting party has the burden of proving 
?good cause? for the court to order the disclosure. Id.
 
The following rules were also amended to account for ESI: Fed. R. Civ. P. 
16(b)(3)(B)(iii) (pretrial scheduling order); Fed. R. Civ. P. 33 (interrogatories); Fed. R. 
Civ. P. 37 (failure to cooperate in discovery and sanctions, providing that absent 
?exceptional circumstances,? a court may not impose sanctions for failing to provide ESI 
lost as a result of the ?routine, good faith operation? of the system); Fed. R. Civ. P. 45 
(subpoenas and discovery from third parties).
 
Recommendations for E-Discovery 
 
1. Be prepared. Not all cases call for discovery of ESI (and you risk infuriating 
your judge if you propound e-discovery in a case that clearly turns on an issue of law, 
without material facts). That said, the surge in electronic information is sure to affect 
how discovery is conducted in cases where facts are at issue. Therefore, it is important 
to be prepared. Attend CLE sessions. Become familiar with important resources, 
including:
 
Federal Rules of Civil Procedure. As noted above, the rules were amended in 
2006 specifically to address ESI. 
 
American Bar Association, Civil Discovery Standards (Aug. 2004), at 
http://www.abanet.org/litigation/discoverystandards/2004civildiscoverystandards.
pdf (accessed Aug. 25, 2008). The Standards were revised in 2004 to address 
ESI. For example, Standard 29 suggests checklists for identifying electronic 
information, factors for deciding what ESI to request, and considerations for
deciding a motion to compel. Standard 31 suggests the content for an initial 
discovery conference between the parties. Id. at 57-70.
 
The Sedona Principles, Second Edition: Best Practices, Recommendations & 
Principles for Addressing Electronic Document Production (2007), at
http://www.thesedonaconference.org/content/
miscFiles/TSC_PRINCP_2nd_ed_607.pdf (accessed Aug. 25, 2008). The 
Sedona Conference is a nonprofit legal research and education organization 
which sponsors work groups on emerging issues of law. The Sedona Principles
offer suggestions to individuals who are facing e-discovery issues. Unlike the 
Federal Rules of Civil Procedure, which are rules that apply after a case is filed, 
the Sedona Principles discuss best practices that are both procedural and 
substantive in nature. A number of courts have cited the Sedona Principles with 
favor when deciding e-discovery disputes. See, e.g., Regan-Touhy v. Walgreen 
Co., 526 F.3d 641, 649 n.5 (10th 2008); Cache La Poudre Feeds, 244 F.R.D. at 
620; In re Seroquel Products Liability Litigation, 244 F.R.D. 650, 656 (M.D. Fla. 
2007) (?A leading resource on dealing with electronic discovery is the Second 
Edition of the Sedona Principles.?). 
 
2. Send opposing counsel a ?legal hold? letter. The legal hold letter informs the 
defendant or potential defendant of the current or anticipated litigation and establishes 
the sender?s expectation that the normal disposition of electronic records will be 
suspended. The legal hold should preserve data that is easily accessible, as well as 
metadata and stored data (e.g. archived or backup data). If you are sending a demand 
letter prior to filing the case, include the legal hold notice. 
 
3. Develop a discovery plan that refines requests for information that may be 
electronically stored. Requests for production of documents should specifically state 
whether ESI is being sought and, if so, whether the information should be produced in 
hard copy and/or in electronic form. Otherwise, the federal rules give the responding 
party the choice of how to comply:
 
Unless otherwise stipulated or ordered by the court, ?[i]f a request does not 
specify a form for producing electronically stored information, a party must 
produce it in a form or forms in which it is ordinarily maintained or in a reasonably 
usable form or forms; and ? A party need not produce the same electronically 
stored information in more than one form. 
 
Fed. R. Civ. P. 34(b)(2)(E). Compare Autotech Tech. v. Automationdirect.com, 248 
F.R.D. 556, 558-59 (N.D. Ill. 2008) (refusing to require production of metadata when 
requesting party did not specify a form for production or specify that it wanted metadata 
as a part of the document production) with Williams v. Sprint/United Mgmt. Co., 230 
F.R.D. 640, 652 (D. Kan. 2005) (?[W]hen a party is ordered to produce electronic 
documents as they are maintained in the ordinary course of business, the producing 
party should produce the electronic documents with their metadata intact, unless that 

party timely objects to the production of metadata, the parties agree that the metadata 
should not be produced, or the producing party requests a protection order.?).
 
Due to the volume of ESI, requests for production can easily become overly 
broad and burdensome and result in protracted discovery disputes. For example, 
lawyers should try to avoid requests that seek ?any and all emails that refer or relate to 
Medicaid nursing facility services.? See, e.g., The Sedona Principles, Second Edition at 
21 (?So-called ?any and all? discovery requests that lack particularity in identifying the 
responsive time period, subject area, or people involved, should be discouraged, along 
with blanket objections of ?overbreadth.??) Regan-Touhy, 526 F.3d at 649 (noting that 
the burdens and costs associated with e-discovery, such as those seeking ??all email,? 
are by now well known?). 
 
Thus, requests for information that is ESI should be carefully tailored. Initial 
requests for production may inquire how data are organized and stored and request the 
software needed to retrieve or read the e-information. See ABA, Civil Discovery 
Standards, at 58-59. In addition, requests can be restricted to documents containing 
specified key terms, dates, and/or names. Development of these limiting terms can 
take time and should be considered as early as possible in the litigation. See, e.g., 
John B. v. Goetz, 531 F.3d 448, 453 (6th Cir. 2008) (describing e-discovery process 
that included electronic searches with key words and a survey of individuals identified 
by defendant as record custodians to certify whether they preserved ESI over the 
course of the litigation); Zubulake, 217 F.R.D. at 324 (requiring the responding party to 
restore and produce responsive documents from a small sample of the requested 
backup tapes where the backup tapes were not easily accessible).
 
Consider an early Rule 30(b)(6) deposition of the person(s) most familiar with the 
defendant?s ESI systems. This includes knowledge of the types of PC/laptops being 
used, databases, data retention policies (e.g. how long are emails retained before they 
are ?deleted? and policies for archiving emails), networks, servers, archives, backup and 
recovery systems. 
 
4. Confer early in discovery with opposing counsel to establish e-discovery 
agreements. Principle 3 of The Sedona Principles states, ?Parties should confer early in 
discovery regarding the preservation and production of electronically stored information 
when these matters are at issue in the litigation and seek to agree on the scope of each 
party's rights and responsibilities.? The Sedona Principles, Second Edition at 21; see 
also Fed. R. Civ. P. 16(b)(5); 26(f)(3) (requiring that ESI be a topic of the initial meet 
and confer). 
 
At the early discovery conference, counsel should confer about the e-discovery 
that they anticipate, including: (i) subject matter of the request; (ii) time period; (iii) 
description of the employees or contractors from whom discovery may be sought;4
(iv) 

identification of current or former employees who are familiar with the information 
systems, (v) types of software and technology being used (including the platforms on 
which the data exist and where the data may be found); (vi) identification of data 
sources that will be subject to preservation and discovery;5
(vii) whether responsive 
data will be preserved and produced in electronic form or hard copy; (viii) whether 
metadata will be preserved and produced; (ix) key search terms for obtaining potentially 
responsive data for discoverable information; (x) whether any forms of data are not 
reasonably accessible;6
(xi) which expert witness materials need to be preserved and 
exchanged;7
and (xii) how to handle potential privilege and inadvertent disclosure 
problems.8
 
The following resources provide helpful suggestions for issues to be discussed 
when discovery of ESI is anticipated: Fed. R. Civ. P. 26 advisory committee?s note 
(2006) (listing considerations and stating discussions should ?pay particular attention to 
the balance between the competing needs to preserve relevant evidence and to 
continue routine operations critical to ongoing activities?); ABA, Civil Discovery 
Standards at 66-67; The Sedona Principles, Second Edition at 21; Fed. Jud. Ctr., 
Manual for Complex Litigation ¶ 40.25 (4th ed. 2004).
 
5. In complex cases, get help from a technology expert. The expert can assist 
with drafting discovery requests and reviewing and assessing document production. 
 
6. Conduct discovery in a manner that anticipates the factors the court will apply 
to resolve any disputes. While jurisdictions apply varying factors to decide a motion to 
compel or request for a protective order, the standards and cases cited in this Q&A 
reflect some of the factors that are commonly assessed by courts when deciding ediscovery disputes. Be mindful of these factors during the discovery process and, when 
possible, tailor your requests and conduct to address them:
 
? Ease of accessing the requested information;
? Materiality of the information to the party requesting it;
? Expense of e-discovery, considering both absolute cost and the estimated costs 
of implementing the requested relief;
? Relative ability of each party to control costs and its incentive to do so;

? Need for discovery, including the availability of the information from other 
sources;
? Complexity of the case and its importance;
? Burden of production, including disruption of normal operations and routines. 
See, e.g., John B. v. Goetz, 531 F.3d 448, 459-61 (6th Cir. 2008) (reversing that 
part of the district court?s order that provided for the U.S. Marshall to make 
forensic copies of designated state- and privately-owned computers, noting 
federalism concerns, civil litigation should not be approached as a ?crime scene,? 
and that less intrusive enforcement mechanisms existed (e.g. sanctions).)
? Need to protect attorney-client privilege, attorney work product, and trade 
secrets;
? Whether the responding party?s ESI is stored in a manner that is designed to 
make discovery difficult or unnecessarily costly;
? Whether the responding party has ?deleted, discarded or erased electronic 
information after the litigation was commenced or after the responding party was 
aware that litigation was probable and, if so, the responding party?s state of mind 
in doing so.? ABA, Civil Discovery Standards at 60-61.
 
Conclusion
 
The dramatic increase in ESI introduces new challenges to achieving efficient 
and successful discovery. If disputes arise, courts will resolve them by assessing the 
reasonableness of the requests and the good faith efforts of the parties. Thus, counsel 
should be prepared and execute a well-developed e-discovery plan. 

 
1 Error! Main Document Only.Produced with grants from the Training Advocacy Support Center (TASC)
and the Nathan Cummings Foundation. TASC is sponsored by the Administration on Developmental 
Disabilities, the Center for Mental Health Services, the Rehabilitation Services Administration, the Social 
Security Administration, and the Health Resources Services Administration. TASC is a division of the 
National Disabilities Rights Network (NDRN).

2 For more in-depth discussion and additional ESI features, see The Sedona Principles, Second Edition at 
2-5.

3 Lawyers should also consult their local rules. State court cases will be governed by the state rules of 
civil procedure. State courts ruling on discovery disputes are influenced by the Guidelines adopted by the 
Conference of Chief Judges, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored 
Information (2006). See, e.g., Bank of Am. Corp. v. SR Int?l Bus. Ins. Co., No. 05-CVS-5564, 2006 WL 
3093174 (N.C. Super. Nov. 1, 2006) (relying on Guidelines and reprinting them in an appendix).

4 See also, e.g., Keir v. Unumprovident Corp., No. 02-Civ-8781, 2003 WL 21997747, at *12 (S.D.N.Y. 
Aug. 22, 2003) (finding defendant?s failure to timely notify its IT vendor of preservation order caused 
responsive data to be lost).

5 See, e.g., Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (finding that duty to 
preserve arises when party knows or reasonably should know that the evidence may be relevant to 
pending or anticipated litigation); 7 Moore?s Federal Practice § 37A.12[5] (3d ed. 2006) (?The routine 
recycling of magnetic tapes that may contain relevant evidence should be immediately halted on 
commencement of litigation.?).
6 Fed. R. Civ. P. 26 advisory committee?s note (2006) (?A party?s identification of sources of electronically 
stored information as not reasonably accessible does not relieve the party of its common-law or statutory 
duties to preserve evidence.?).
7 See, e.g., Trigon Ins. Co. v. United States, 204 F.R.D. 277, 282 ((E.D. Va. 2001) (finding government 
has duty to preserve correspondence between experts, including drafts of reports).
8 See The Sedona Principles, Second Edition at 51 (suggesting that parties consider ?nonwaiver 
agreements? that outline ?clawback? procedures if confidential or privileged information is inadvertently 
disclosed).

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