by David Horrigan on May 28, 2015
When most of us tell friends and family we work in e-discovery, we often get befuddled looks. Even many of our legal colleagues think of e-discovery the way they think of ancient Egyptian hieroglyphics or the Rule Against Perpetuities—undecipherable, complex, and best avoided at all costs.
However, the digital era has made e-discovery part of everyday life, where just about any dispute or investigation can trigger a need for discovery of electronic data. Because e-discovery is everywhere, it may not be that difficult to explain—and maybe even fun and entertaining.
e-Discovery is fun? Entertaining? Easy to explain? Really?
Yes, really. Stick with us here for a moment.
To illustrate our point, let’s examine Deflategate, the high-profile dispute involving the National Football League, the NFL Players Association, a star player, and the NFL champion New England Patriots. The NFL (sort of) claims the Patriots cheated on the road to glory by deflating footballs against league rules to suit the team’s celebrity quarterback, Tom Brady, who happens to be the husband of supermodel Gisele Bundchen.
This all-star cast of characters provides some important and entertaining lessons about e-discovery.
LESSON #1: e-Discovery isn’t just about litigation anymore.
For better or worse, the United States is the litigation—and e-discovery—capital of the world, with 295,310 civil suits filed in federal courts in the fiscal year ending Sept. 30, 2014. That’s before considering the millions of new cases each year in the nation’s state courts. In California alone, aggrieved citizens filed 922,458 civil suits in fiscal year 2012-2013. If one includes all types of court cases, California had an astounding 7.7 million new cases.
In its traditional definition, e-discovery refers only to electronic discovery in litigation. However, times have changed. Even with the tidal wave of lawsuits, the need for discovery of electronic data extends far beyond the courtroom. Litigation no longer has a monopoly on e-discovery, which is becoming much more common in regulatory proceedings and corporate investigations. Government agencies and private businesses use e-discovery for purposes having nothing to do with litigation.
For instance, in Deflategate, no one has sued anyone—at least not yet. Much to the dismay of many Patriot fans, the team announced on May 18 that it would not challenge NFL-imposed sanctions. However, Brady and the union are continuing their battle with the league, and e-discovery has been the focal point of the dispute as investigators dig into communications—such as text messages—on the subject.
LESSON #2: Creating effective timelines is critical.
As e-discovery attorneys, paralegals, and technologists wade through data centers of electronically stored information (ESI), evidence collected can become a data lake of jumbled facts and dates from various information silos.
Deflategate has gripped the nation and saddled servers with extensive electronic data. For instance, a search for ‘Deflategate’ on a major search engine will return 12.5 million hits. Meanwhile, a search for ‘Syrian refugee crisis’ returns a mere 1.9 million hits.
Enter the e-discovery timeline. A matter such as Deflategate can draw ESI from countless potential custodians, but an e-discovery timeline can organize the data for trial teams while creating compelling exhibits for fact-finders.
In the example of the Deflategate timeline below—created with Relativity Fact Manager—we’re able to illustrate the compelling series of developments in this saga.
LESSON #3: ESI is rarely private, and e-discovery can create embarrassing moments.
Embarrassing moments in e-discovery are nothing new. Ronald Reagan came dangerously close to being impeached for breaking U.S. law after his aide, Oliver North, seemed to think electronic messages were gone forever if you deleted them from a computer workstation, while Hillary Clinton finds herself in a current high-profile e-mail imbroglio.
In examining the facts of Deflategate as illustrated in the timeline above, it seems highly unlikely McNally ever thought his expletives directed at Tom Brady, his reference to Brady’s UGG shoes endorsement, or—far more importantly—his alleged references to deflating footballs would ever see the light of day.
In fairness to McNally and the Patriots, they claim the NFL’s investigation has been mishandled and unfair, that when McNally called himself “the deflator,” he was referring to his efforts to lose weight, and that his reference to Tom Brady and UGGs was simply a humorous reference to Brady gifting UGGs to other Patriots staffers—not including McNally.
Most e-discovery professionals are amazed by the ill-advised things people put in email, texts, and on social media. In City of Ontario v. Quon, we learned that having a torrid romance on your work pager was probably a bad idea, and Allied Concrete Co. v. Lester taught us that if you’re suing for loss of consortium over the death of your wife, posting—and then deleting—Facebook photos of yourself partying with your new lady friends is a really bad idea.
In short, if you use digital data to hurl expletives at your team’s quarterback while (allegedly) making fun of the shoes he endorses, e-discovery may let the entire world find out about it.
LESSON #4: e-Discovery may affect you even if you’re not a party to a lawsuit.
After the Patriots’ upset loss in the 2012 Super Bowl, Bundchen was allegedly heckled by New York Giants fans and reportedly responded, “My husband cannot [expletive] throw the ball and catch the ball at the same time!”
If she had that to say about the Patriots’ receiving corps, imagine what she might have to say about Jim McNally. The NFL, which has been criticized for extremely broad ESI requests, might want to know.
Although the marital communications privilege would almost certainly protect any electronic messages between Bundchen and Brady if there were litigation, Bundchen’s other communications might be fair game under Fed. R. Civ. P. 45.
For instance, in a fictitious scenario of Bundchen texting Leonardo DiCaprio a message stating, “That Tommy is such a cheater. I saw him deflating footballs in the garage. I knew I should have married you, Leo,” Rule 45 would provide for discovery of the message. However, under Fed. R. Civ. P. 45(d), Bundchen could move to quash any subpoena due to “undue burden or expense.”
LESSON #5: The law of e-discovery doesn’t stop at the U.S. border.
The laws of other nations can affect legal matters, and nowhere is that more true than in e-discovery. Our fictitious Bundchen-DiCaprio text provides an excellent example of how international laws can affect e-discovery.
After the electronic data disclosed by Edward Snowden revealed the U.S. National Security Agency had eavesdropped on the communications of Brazilian President Dilma Rousseff, Brazil’s Marco Civil da Internet gained new momentum and became law last year. Under the law, the ESI of Bundchen, a Brazilian citizen, is subject to Brazilian law, and Brazil is considering even more stringent data privacy provisions—as are other nations around the world.
Of course, don’t expect U.S. litigants, investigators, or regulators to simply pack up and go home if the laws of other nations impede their quests for data discovery. The 1987 U.S. Supreme Court case, Societe Nationale Industrielle Aerospatiale v. U.S. District Court, established a five-factor test for addressing conflicts between U.S. law and international laws in e-discovery, but controversies continue, such the pending 2d Circuit case, Microsoft Corp. v. United States, in which U.S. federal prosecutors are seeking email data stored on servers in Ireland.
e-Discovery encompasses a wide variety of disputes, and it can disclose a wide variety of information—some pretty embarrassing. It also can often involve many other legal issues, such as international law issues. And of course, there’s still the fact that, if you take the time to apply it to hot topics or issues, it really can be fun.
David Horrigan is e-discovery counsel and legal content director at kCura, and is a former analyst and e-discovery attorney with more than a decade of experience in e-discovery.