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Demons and Dragons: The Plague of ESI on Public EntitiesVictor A. Afanador

In this current economy, public entities are forced to do more with less and carefully watch the their coffers. Public entities are required to provide basic protective, maintenance and regulatory services for their communities while struggling to pay increasing employee salaries, fund pensions, manage a diminishing tax ratable base, and defend a myriad of lawsuits, all while taxpayers are demanding lower taxes. 

Technology, as evidenced through the last twenty years, aids in an almost immediate ability to be able to “get things done.” This ability to communicate works equally well for government leaders and constituents. It allows for a constant dialogue with a public entity’s services and department heads through social media and other electronic communication. That very same technology, however, opens up a world of documentation and “electronic stuff” that can plague and even stifle a public entity during the discovery process of a lawsuit when the public entity is a plaintiff or a defendant.    

Think about it. A routine personal injury pothole case could potentially require a public entity to generate: all e-mails from the department of public works regarding pothole repairs, all electronically stored information or logs notating the number of potholes in a City, all stored matrixes of relevant information in such as work related cell phones or potentially private ones, tablets, iPads, desktops, digital images, meta data for the devices, social media accounts, private e-mails and so on.   The long arm of the electronic discovery demon could reach deep into depths of cyberspace.  

Now, the reality is that many of these ESI issues are dominating matters venued in our federal district courts and are not the topic of discovery frustration in state court-venued personal injury matters. Nevertheless, many public entities are not equipped to handle massive ESI discovery issues and many have not even seen how disadvantageous it can be to defending the “real issues” in a litigated case. Public entities may be placed in a completely defensive and costly position in litigating unnecessary ESI discovery issues.  

There are countless law review articles and seminars that address the issues of how to manage the 2 million terabyte—gigabyte—megabyte ESI-related search. Many of these issues and debates about what to produce and how to do it are caged in big business litigation or securities related lawsuits. They are, however, beginning to rear their dragon heads in state court employment cases, property-related lawsuits, and the new wave of state and federal civil rights lawsuits.

So what, many of you may say? Call the Law Department and just tell IT to run a quick search and then send you a stack of e-mails to review. It is, however, not that simple.

Does your public entity have an IT department or has it been phased out to a vendor because of budgetary reasons? Is there an automatic e-mail destruction policy? Was a litigation hold letter sent out? If so, what did it say and how broad is it? Does the public entity now have to stop its automatic destruction of documents? What about each state’s local government retention policies, which guides the destruction of most government records and correspondence? Whose e-mails are you searching? How does one determine if the Mayor’s or Council Member’s e-mails should be reviewed in this matter? Are you searching the Director of the Department of Public Work’s private cell phone or just his work cell phone? Can you rely upon the custodians to just conduct a search and send them to you or a lawyer in the City? Do you have to have a set of negotiated and selected search terms or do you just turn over 20,000 e-mails to outside counsel for a review? Do you have to hire a vendor or can the IT department of your public entity handle it?

These are the questions that have to be asked, and unfortunately the answers are left to each individual case and the magnitude of ESI available in that particular case. The fact is that ESI discovery issues will begin to plague public entity lawyers. Accordingly, we better be ready for it, and our City Administrators need to start arming themselves with swords and shields and reevaluate the learned Esquires handling such matters. Times change and the expertise involved will demand a new financial structure because of the advent of ESI.  

I leave you all with ten simple action items to get you started:

1.      Find out if ESI is an issue in your case.

2.      Determine if there is a budget for hiring ESI vendors and experts for harvesting the ESI.

3.      Find out how the ESI is stored.

4.      Find out how many different devices or servers are at issue.

5.      Outline the custodians at issue and debate whether more or fewer should be included.

6.      Decide whether the project be handled internally with IT or is an outside vendor required?

7.      Don’t just randomly pick search terms but vet them with your clients, the custodians themselves, and even your adversary.

8.      Test out the search terms to gather the universe of documents and see if there is a way to hone down the searches.

9.      Determine if this will be onerous and too costly for the City to justify filing a protective order or ask for a case management conference.

10. Educate yourself and your client as to this new ESI world and its ability to place the public entity you are representing at a considerable disadvantage.

I suspect that as we move forward in time we will view ESI discovery much like we did in the days long gone when lawyers were lawyers and just rolled up their sleeves and plunged into battle against a box of documents to review for relevancy and privilege before producing discovery. Or maybe someone will invent a droid that will cheaply, quickly, and effectively cull the ESI and narrow the universe of data to only what is “reasonably calculated to lead to the discovery of admissible evidence.” But if that happens, then what will a lawyer’s role be?