The History of E-Discovery is Both Interesting and Important

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

E-discovery blazed across the litigation sky more than two decades ago.  There were several reasons:

As a starting point, what is ESI?  Forensic expert Craig Ball, Esq., notes that the Federal Rules of Civil Procedure use the term “electronically stored information,” but do not define it. C. Ball, “Electronic Discovery Workbook” (2019), 47 n. 11 (hereinafter “2019 Workbook”). The same is true of the Maryland Rules.

Craig explains that the definitional absence is based on a “recognition of technology’s ability to outpace law.”  Id; see M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chap. 1.

ESI is not merely paper in another form; it is an entirely new medium of information, presenting unique advantages, benefits, and challenges. “E-discovery is more complex than paper discovery; but then, electric lighting is more complex than candles, and cars more complex than bicycles. It’s a complexity we can use to useful ends.” Ball, 2019 Workbook at 11.  ESI is voluminous and, paradoxically, both fragile and persistent. 

First, how did the term “ESI” enter the Federal Rules of Civil Procedure? The story seems to begin in 1970, when “the Federal Rules of Civil Procedure … were amended in an attempt to clarify the issue of e-discovery.” Historical ESI Highlights – Part I (May 24, 2022)(citation omitted). Those amendments made clear that Rule 34 document requests applied to “data compilations.” Then, in 1996, the ”Discovery Project of the Advisory Committee on Civil Rules” was inaugurated to consider amendments.^[1]

Second, in December 2006, the federal “e-discovery rules” went into effect.  States followed suit, with Maryland doing so in January 2008.  They were sparked in part by a law review article authored by The Hon. Shira A. Scheindlin in 1999. See Historical ESI Highlights – Part II – Zubulake (May 25, 2022). Quaint as it seems today, Prof. Marcus reports that, during the rules-drafting process: “A number of people, for example, said that the right approach would be to declare somehow that email is not discoverable.”  Richard L. Marcus, “E-Discovery Beyond the Federal Rules,” 37 U. Balt. L. Rev. 321 (2008).

Third, early “marquee” cases imposed staggering – – and headline grabbing – – sanctions:  “Marquee e-discovery-disaster cases, [such as] Qualcomm Inc. v. Broadcom Corp. and Metropolitan Opera Ass’n v. Local 100, Hotel Employees & Restaurant Employees International Union,” and I would add Zubulake,^[2] gathered headlines.  See Dan H. Willoughby, Jr., et. al., “Sanctions for E-Discovery Violations: By the Numbers,” 60 Duke L.J. 789, 792 (2010); see Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases” (May 26, 2022).  The Duke article states that the first e-discovery sanction was in Wm. T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984)(relying on court’s inherent power and Rule 37).^[3]  By 2010, the date of the Duke article, the authors reported that sanctions were at an all-time high.^[4]

Fourth, litigators began to recognize the import of electronically stored information.  For example, in her book, Ms. Laura Zubulake explained: “Where there was e-smoke, I suspected there would be e-fire.” Laura A. Zubulake – Zubulake’s e-Discovery: The Untold Story of my Quest for Justice. Remarkable as it may now seem, Ms. Zubulake reports that her email account was not requested by the defense in discovery. Id. at 63.

Fifth, computers became common-place, faster, and the price of storage dropped precipitously.  Data exploded from megabytes to terabytes.  George Paul and Jason Baron published  “Information Inflation: Can The Legal System Adapt?”, 13 Rich. J.L. & Tech. 10 (2007).  Paul and Baron wrote that, after 5,200 years: “[L]awyers must understand that information … has profoundly and irrevocably changed.”

Sixth, organizations, such as the Sedona Conference and Electronic Discovery Reference model led the changes.  Historical ESI Highlights – Part VII – The Sedona Conference and EDRM (May 30, 2022);  M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chap. 35 (by Kenneth J. Withers). 

The Electronic Discovery Reference Model was created around 2005 by George Socha and Tom Gelbmann to improve e-discovery standards.  See What Is the EDRM (Electronic Discovery Reference Model)? (pagefreezer.com); accord  Welcome – EDRM (“Since 2005, EDRM has delivered leadership, standards, tools, guides, and test datasets to strengthen best practices throughout the world.”).

In 2003 and 2005, The Sedona Conference published “The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery” (2005). An early Sedona draft was cited in Zubulake v. UBS Warburg, 229 F.R.D. 422, 440 (S.D.N.Y. 2004). 

Seventh, courts issued textbook decisions.  See, e.g., Historical ESI Highlights – Part IX – Lorraine v. Markel Am. Ins. Co. (Jun. 1, 2022);  Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching (May 29, 2022).  And, they adopted protocols, principles, and guidelines. See, e.g., Applied Discovery: Maryland Protocol.^[5]

Eighth, even law schools jumped on the bandwagon.  In 2008, the University of Baltimore School of Law was an early adopter. Berman is Co-Developer of Law School ESI Seminar (Apr. 10, 2011)(“In the spring of 2008, The Honorable Paul W. Grimm and [Mike Berman] developed a three-credit ESI workshop for law school students.  The class was first offered at the University of Baltimore School of Law….”); Patrick Burke Demonstrates EnCase Portable (Apr. 17, 2011);  Kate Paslin Demonstrates Access Data CaseVantage 6 and Summation iBlaze (Apr. 18, 2011); The Need for Law School Classes in Discovery Procedures (Nov. 27, 2021);  “The Legal Competency Missing from Legal Education: Law School Curricula and E-Discovery” (May 24, 2024).

History is an important tool in understanding these changes. 

For example, it may be difficult to understand Fed.R.Evid. 502 without knowledge of Judge Grimm’s Hopson decision that paved the way.  Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502 (May 2, 2022).  In fact, Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005), showed the critical flaw in the procedural “clawback” rule (Fed.R.Civ.P. 26(b)(5)(B)) and Hopson prompted Congress to enact Fed.R.Evid. 502. 

And, many modern concepts underlying e-discovery, such as the December 2015 amendments to the scope of federal civil discovery, are based on the Sedona Conference’s Cooperation Proclamation.  Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation (May 31, 2022).

“History is who we are and why we are the way we are.”^[6] 

The Rev. Martin Luther King, is a much more significant context, said: “We are made by history.” 

Aristotle wrote: “If you would understand anything, observe its beginning and its development.”

It can be argued that everything that is new is really old.  Thomas Jefferson’s “Metadata” in the Declaration of Independence (Apr. 28, 2022).

It may be surprising to learn about the first online wedding.  Today, you can get married on Zoom.  But nothing is new.  The first online wedding took place by telegraph in the 1800’s.  When Was the First Online Wedding? – William Storey and Clara Choate’s Love Story (Feb. 11, 2021), citing Standage, “The Victorian Internet” (Walker & Co. 1998, 2007), 127-28.  Standage describes a wedding reported in 1848.  One partner was in Boston, the other in New York.  Many romances began over the wires.  Standage at 136.  But change may be opposed.  Some were not happy and a cautionary tale was published under the title “The Dangers of Wired Love.”  Id.

It may be surprising to learn that the first online game was played in the 1840’s. “Bored and lonely” telegraph operators played chess and checkers “over the wires, using a numbering system to identify the squares of the board that dated back to the chess games played over the Washington-Baltimore line in the 1840s.”  Id. 

However, recently, change has been rapid.  In discussing ESI, the Hon. John M. Facciola asked: “Did anyone get the license plate of the rocket ship that hit me?”^[7]

I have recently published a series of blogs to help explain how “we got here”:

• Golden Oldie #6 – Four Historical Search Decisions
• Golden Oldie #5 – Fed.R.Civ.P. 26(g) and the “Discovery Budget”
• Golden Oldie #4 – What Does it Mean to Limit Discovery to the “Claims and Defenses” Instead of the “Subject Matter” Involved in the Action?
• Golden Oldie #3 –  Retaliatory Delay is Not Permitted: Two Wrongs Don’t Make a Right
• Golden Oldie #2 – 40 Hours of Searching is Enough
• Golden Oldie #1 – Is a Preservation Letter Necessary to Trigger an Opponent’s Duty to Preserve?

Previously, I posted a series on “historical highlights”:

• Historical ESI Highlights – Part XII – Texas v. Frisco and the “Free for All Zone” – A Preemptive Strikeout – E-Discovery LLC
• Historical ESI Highlights – Part XI – Taniguchi v. Kan Pacific Saipan – E-Discovery LLC
• Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure – E-Discovery LLC
• Historical ESI Highlights – Part IX – Lorraine v. Markel Am. Ins. Co. – E-Discovery LLC
• Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation – E-Discovery LLC
• Historical ESI Highlights – Part VII – The Sedona Conference and EDRM – E-Discovery LLC
• Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching – E-Discovery LLC
• Historical ESI Highlights – Part V – Technology Assisted Review – E-Discovery LLC
• Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502 – E-Discovery LLC
• Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases” – E-Discovery LLC
• Historical ESI Highlights – Part II – Zubulake – E-Discovery LLC
• Historical ESI Highlights – Part I – E-Discovery LLC (“Knowing the history of e-discovery gives context to the practitioner for a better understanding of the purposes of the current rules and future legal developments.” … “The history of e-discovery shows that applying traditional rules to emerging technological advances produces, at best, disparate results. It was only through innovative judge-made law and a revision to the Federal Rules of Civil Procedure that this area of the law achieved a measure of uniformity.”)(citations omitted).

And, before that, I posted:

• Did You Know? – Spoliation, Part X – E-Discovery LLC
• Did You Know? – The Fax Machine, Part IX – E-Discovery LLC
• Did You Know? – The Photocopier, Part VIII – E-Discovery LLC
• Did You Know? – The Mimeograph, Part VII – E-Discovery LLC
• Did You Know? – The Computer, Part VI – E-Discovery LLC
• Did You Know? – The Magic Marker and Highlighter, Part V – E-Discovery LLC
• Did You Know? – The Typewriter, Part IV – E-Discovery LLC
• Did You Know? – The Ballpoint Pen, Part III – E-Discovery LLC
• Did You Know? – The Fountain Pen, Part II – E-Discovery LLC
• Who First Used the @ Sign in Domains and What Does It Mean? – E-Discovery LLC
• Who Invented the Mouse a/k/a the X-Y Position Indicator for a Display System? – E-Discovery LLC

History provides context for the present.  My alma mater asks “why should you study history?”  It answers that the past teaches us about the present. Why should you study history? – Department of History – UW–Madison.  The University of Texas suggests that history helps us see the world in a new way.  Four Reasons Everyone Should Study History

Notes

[1] Richard L. Marcus, “E-Discovery Beyond the Federal Rules,” 37 U. Balt. L. Rev. 321, 329 (2008).

[2] Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), became known as “Zubulake I.”  It was followed by Zubulake II, 230 F.R.D. 290 (2003), Zubulake III, 216 F.R.D. 280 (2003), Zubulake IV, 220 F.R.D. 212 (2003), Zubulake V, 229 F.R.D. 422 (2004), and then a sixth decision, 382 F.Supp. 536 (2005).

[3] The Wm. T. Thompson court wrote in 1984: “Sanctions may be imposed against a litigant who is on notice that documents and information in its possession are relevant to litigation, or potential litigation, or are reasonably calculated to lead to the discovery of admissible evidence, and destroys such documents and information. While a litigant is under no duty to keep or retain every document in its possession once a complaint is filed, it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request.”  Thompson cited precedent such as: “It has long been recognized that sanctions may be proper where a party, before a lawsuit is instituted, wilfully places himself in such a position that he is unable to comply with a subsequent discovery order.”  Bowmar Instrument Corp. v. Texas Instruments Inc., 25 Fed. R. Serv. 2d 423 (N.D. Ind. 1977).

[4] Amendments to the Federal Rules of Civil Procedure in December 2015 were intended to address this issue.  Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure (Jun. 2, 2022).

[5] The “ESI Protocol” of the District of Maryland has been replaced by “ESI Principles.”

[6] David McCullough.

[7] Judge Facciola’s Chapter is printed in M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), 13.

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.