Recap: E-Discovery

April 2014 Dicta
by Bill Richmond

In case you missed it, DAYL’s CLE Committee hosted a discussion on electronic discovery on February 11, 2014 at the Belo Mansion. The presentation itself was more entertaining than the usual CLE lecture as it was a “fly on the wall” view of client interactions on both sides in preparation for dealing with the various issues that come with handling electronic production and discovery requests. The group included: Judge Martin Hoffman (Dallas County 68th District Court); former DBA President Paul Stafford; Rachel Ratcliff of Stroz Friedberg, Angelina LaPenotiere of Carrington Coleman Sloman & Blumenthal, LLP, and Chris Simmons of Deans & Lyons. Here are a few of the high points:

1. Authorities. In Texas, electronic discovery is largely addressed in Rule 196.4 and by the seminal opinion in In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009). Read them. Learn them. Love them.
2. Survey the Landscape Thoroughly. E-discovery is tough because there are so many different nooks and crannies one must consider and probe in order to thoroughly request electronically-stored information (“ESI”) and adequately respond to ESI requests. These areas include emails, cell phones, tablets, external drives, flash drives, Google Glass, fitness/GPS watches, server data, text messages, in-application messages, social media, websites, metadata in documents, metadata in emails, cloud data, photos, videos, internet history, etc. Third parties may also have relevant ESI, including social media company servers, cloud computing host servers, cloud-based email servers, and iOS/Android app servers. 
3. The Devil’s Advocate. Clients often mean well and believe they are being completely forthright about the various sources of relevant e-discovery in their case, but a lawyer must play the devil’s advocate to leave no stone unturned that could spell disaster later in the case or at trial. What ESI do you have? What ESI did you have that you got rid of? How did you get rid of it? Who did you forward the information to? What social media sites are you involved in? What applications do you use on your mobile devices and tablets?
4. Specificity. When seeking ESI, the requesting party must make specific requests for information. Additionally information as to what form you want it in will assist in clarifying your request to avoid issues down the road. This can include PDF, TIF, native, and document management system load files (Summation, Kroll OnTrack, Relativity, etc.).