Thinking E-Discovery: Incorporating EDD into Your Depositions - the 5Ws of EDD Depositions
By Dennis Kennedy, Evan Schaeffer and Tom Mighell
Dennis Kennedy (DK): We’ve been resisting the urge to write about the December 1, 2006 amendments to the Federal Rules of Civil Procedure because it seems as if hundreds of others have written on that topic. However, all the attention seems to have limited effect. We’re already hearing analogies between the impact of the new rules and the impact of Y2K. However, we’re planning to wait a bit before we assess the impact of the amendments. Today, we want to discuss some practical ways you can prepare for and improve electronic discovery in your depositions. You see, electronic discovery does touch every aspect of litigation today. Evan, we want to congratulate you on the publication of your new book on depositions. Would you take a minute to tell us about the book and sketch out an overview of the interplay between EDD and depositions?
Evan Schaeffer (ES): My book is called Deposition Checklists & Strategies. It’s published by James Publishing. Although the deposition checklists are geared towards plaintiffs’ lawyers, there are lots of practice tips that would be helpful for all types of lawyers. Although the book’s focus is depositions, not electronic discovery, there’s some EDD in the book. For example, I suggest that lawyers always consider the use of a corporate-representative deposition on electronic-discovery issues at the beginning of a case. Under Fed.R.Civ.P. 30(b)(6) and analogous state-court rules, you can send a notice that lists topics of inquiry and that obligates the other side to provide a witness or witnesses who have knowledge of the topics you list. This procedure works very well for quickly obtaining a broad overview of a defendant’s data systems.
Tom Mighell (TM): Congrats on the new book, Evan! I agree with your advice, too; if you have a case where electronic documents may play a big part, early on you’ll want to take the deposition of a corporate representative with knowledge of the party’s computer systems. The new rules didn’t really make that possible for the first time; lawyers have been deposing IT-types on document retention and management for some time. But for the first time, the new rules provide a framework for lawyers to request e-discovery information from opposing parties.
DK: It’s always struck me that you want to talk to people about electronic discovery issues and explore what’s going on, rather than rely on carefully-parsed written answers to interrogatories. My sense is that we are simply looking at the old “5Ws” of journalism once again - who, what, when, where, and why. Or is “how” one of the five, or a sixth question?
ES: How about the 5Ws and the 1H? You’re right that you’ll probably get more and better information from depositions than from answers to interrogatories. For one thing, interrogatory answers are filtered through a lawyer. Even if he or she is a straight shooter, the lawyer drafting the final answers might not understand every detail of the client’s data systems. Why not go straight to the source by deposing the company employees responsible for the data?
TM: I have always viewed interrogatories as the prep for a deposition. I ask for basic information that will allow me to do my homework for the depositions to come — order medical or employment records, conduct background checks, and the like. But interrogatories are inherently limiting, because they don’t allow for follow-up. That’s why depositions are such a crucial part of the litigation process. I must admit, however, that I never imagined myself operating by the rules of journalism when deposing a witness…
DK: Well, maybe we can humor me and accept my premise. Let’s start with the “Who.” Boil it all down and you really want to find out who keeps the data. Find out who is responsible for archiving, storing, managing, and otherwise handling data. Who sets the data retention and deletion policies? Who reports to whom? Who has overall responsibility and who manages the day-to-day activities? In short, who knows what is going on and who can most help you get the information you need? Evan, a few more whos?
ES: If you’re deposing someone who’s high up enough in the organization, you ought to be able to come away with an entire organizational chart of a company’s IT department. Just be sure to inquire about the job duties for each person named. As for more “whos” – Who is responsible for the design and maintenance of the defendant’s computer systems? Who purchases the company’s computer hardware? Who purchases the software or writes the code? Who’s responsible for the interface between differing company databases? Who inputs data? Who is called when things don’t work like they’re supposed to work? Who has the ultimate responsibility for back-ups? For data retention? For data deletions?
TM: Gee, you both named just about all the “whos” worth mentioning. Only one more “who” I can think of — those employees who may have e-mail or other electronic documents relevant to the lawsuit. You’ll no doubt get this information from other individuals in the case, but it’s certainly worth confirming with the relevant IT representatives.
DK: That’s a point worth emphasizing, Tom. Next up, “what.” This is the basic stuff. What data? What records? In what forms and formats? What policies? What procedures? What amount of data? What devices and systems? What the heck are they doing with data?
ES: In a real-life deposition, of course, the questions are going to be organized differently than we’re presenting them in this column. The who-what-when-where-why format works well for organizing a column, but not necessarily a deposition. What I’d advise is using the questions we’re suggesting as a way of brainstorming in preparation for an EDD deposition. Accept the questions or reject them based on your own deposition and discovery goals. Once you have a list of questions, reorganize them in a way that makes sense, either chronologically, topic by topic, or perhaps from general to specific.
TM: That’s right, Evan. But Dennis is right, too — with e-discovery witnesses, “what” is definitely a question you have to ask. To successfully make use of the new FRCP amendments, you’ve got to know what you’re working with — what computer systems are in use, what document retention policies are in effect, what information resides in archives or backup tapes. Probably the biggest “what” is “what amount of data is in play here?” The number of potentially relevant electronic documents may determine the scope of discovery, and whether it’s worth the effort — and money — to deal with multi-gigabytes of information.
DK: Evan has made the point elsewhere that a good technique in handling depositions is to assume that the deponent is lying. In this area, it may be best to assume that the deponent is bluffing about what he or she knows, or maybe that no one really knows what is going on. Next, “when.” When did you delete the data that is absolutely essential to my client’s case? Perhaps, you will want to phrase it more delicately. When has data backed up? When was the computer last turned on? When were data retention policies implemented? When did specific IT-related events occur in relation to the timeline of your case?
ES: When the issues in a deposition revolve around software and networks and digital data and computer forensics, it helps to have some background in these areas. That makes electronic-discovery depositions different from many others. You must ask precisely the right questions. If you don’t, it’s just too easy for the witness to lead you in the wrong direction. I’ve often written about how young lawyers can set themselves apart in their firms by becoming known as go-to experts in certain areas that are arcane but necessary – removal jurisdiction, for example, or forum non conveniens. Why not computers and EDD? I guarantee that in this area, other lawyers in the firm would be happy to give up their deposition-taking responsibilities to the lawyer who knows the area best.
TM: Here’s another “when” that lawyers are using more and more nowadays: “when did you implement the litigation hold that was issued in this case?” In addition to preserving relevant evidence, a litigation hold is often sent in the hopes that electronic documents will be destroyed, leading to a spoliation charge. The big verdicts we’ve read about in the past few years came about not necessarily because the claims had merit, but because of “adverse inferences” issued by courts after it was determined that documents were destroyed. Knowing when that litigation hold was actually implemented may determine whether spoliation will become an issue in your case.
DK: “Where.” Perhaps it’s best not to start off with “where is the smoking gun?” The “where” questions help you determine where data might be kept, stored, collected, and otherwise handled. They will help you locate where hard drives, USB storage devices, and the like may be, as well as find specific data directories. Determining the location of backup tapes is an important priority.
ES: The “where” questions lead to an important point that in large corporations, data is often divided among departments, physically located in different areas and using different hardware or software or database types. I recently deposed an employee from a network of hospitals where this was the case. You probably won’t need to know every detail about these different and competing systems, but you’ll need to learn enough to make a decision about what you do and don’t need to know. Getting the information you need to make informed decisions about discovery often depends on finding the right witnesses and asking the right questions.
TM: It also depends on thinking of every possible place where relevant e-documents might reside. Data now lives in so many different places, it’s easy to overlook all of the nooks and crannies. Two quick examples: the New York Times recently had an article discussing how employees are now forwarding their work e-mail to personal, web-based accounts like Yahoo, GMail or Hotmail. I also came across a web site last week where you can send a text message through your browser to a cell phone; the site keeps an archive of those messages. How many lawyers are thinking about places like this when they are requesting electronic information?
DK: Or iPods and cameraphones - the list of places data can be kept is growing exponentially. I’m going to combine “why” and “how” here. Your emphasis should be on learning what processes and procedures are being used, with enough specificity so that you can analyze and determine how to hone your search for relevant information. For example, why was data deleted, why were standard procedures avoided or changed, and how data is handled on an everyday basis? Evan, what do you ask for along these lines?
ES: The questions you can ask about electronic discovery are virtually limitless. Much of it is case-specific. But the exercise of putting together this column has made me realize I need to include a sample deposition along the lines we’re discussing here in the next edition of my book. I’m obligated by the terms of my contract with the publisher to write a lot of new content each year. I have a feeling that electronic discovery is going to be featured more prominently in the next edition of my book.
TM: Evan, you’re right — knowing the right questions to ask in an electronic discovery deposition is crucial, and I’d wager most lawyers haven’t had the opportunity to ask many questions along those lines; a chapter providing the right types of questions to ask (as well as the right terminology to use) would be a great addition to your book. Dennis, for me the “why” and “how” questions definitely have to do with process — I would really want to know how documents are maintained and/or deleted, and then why the processes and procedures were implemented in that manner. That will help me understand whether I should seek other types of documents, or press for sanctions because documents were destroyed.
DK: These ideas should give lawyers a simple strategic plan for depositions involving EDD matters. I also suggest that they read Evan’s new book. Evan and Tom, let’s wrap it up with some of your favorite tips for handling EDD issues in depositions.
ES: One of my favorite tips I mentioned already, that is, the use of corporate-representative deposition at the beginning of a case. With a corporate-representative deposition, you don’t take the risk that the witness you notice for a deposition will show up without having the requisite knowledge to answer your questions. Using the corporate-representative procedure, you list the topics in your notice and the opposing party must choose the proper witness.
Even if you use this procedure, you’ll still want to have the flexibility to depose specific witnesses of your choosing. To find out what witnesses have knowledge of particular topics at the beginning of a case, I suggest sending an interrogatory that asks the opposing party to identify the witnesses who have knowledge of topics you want to learn more about. Here’s an example:
1. Please give the names and addresses or otherwise identify and locate all persons who to your knowledge, or to the knowledge of your agents and attorneys, purport to have knowledge of the following listed topics, and briefly state their relationship to the alleged occurrence:
(a) The computer hardware and software used by XYZ’s accounting department;
(b) The means and methods by which XYZ’s accounting department is networked with all other independent operating units within XYZ;
(c) The hardware and software used by members of XYZ’s accounting department to send, receive, and store emails.
(d) The details of back-up procedures for all digital data created, received, viewed, or stored by members of XYZ’s accounting department.
TM: Here’s a general tip: The new rules provide a “safe harbor” protecting parties that destroy documents as part of the “routine, good faith operation” of computer systems. Whether or not it’s an issue in your case (yet), it’s worth exploring your opponent’s document retention policies with some specific questions in the deposition; later, if you find yourself in front of the judge responding to the opponent’s plea for safe harbor protection, you’ll already have the answers you need, straight from the horse’s mouth — so to speak.
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Dennis Kennedy (dmk@denniskennedy.com) is a well-known legal technology expert and technology lawyer based in St. Louis, Missouri. An award-winning author, he has written extensively on electronic discovery and other legal technology topics and also speaks frequently on these matters. His website (www.denniskennedy.com) and blog are highly-regarded resources.
Evan Schaeffer (eschaeffer@riverbendlaw.com) is a class action and mass torts lawyer based in the St. Louis metropolitan area. His firm is Schaeffer & Lamere, P.C. Schaeffer’s weblogs are The Illinois Trial Practice Weblog and Evan Schaeffer’s Legal Underground.
Tom Mighell (tmighell@swbell.net) is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson, P.C. in Dallas. He is the author of the Internet Legal Research Weekly, and the Internet research weblog Inter Alia, an Internet legal research weblog.
Filed under From the Experts.