Editor: Mr. Cohen, will you tell us how you came to Weil Gotshal?
Cohen: I came to Weil Gotshal mainly because of David Lender, my co-author of the treatise Electronic Discovery: Law and Practice and now fellow litigation partner. We were classmates at Duke Law School, and he was the only lawyer I knew in New York who really liked what he was doing and the firm he was with.
Editor: Would you tell us about your practice?
Cohen: Most of my practice involves computer-related intellectual property litigation and counseling. For the past several years e-discovery has become an increasingly large part of my work. I counsel clients on how to manage their electronic information, comply with their e-discovery obligations and use e-discovery to their advantage.
Editor: How have you seen the practice of e-discovery evolve over the past few years?
Cohen: Electronic discovery has gone from being considered an esoteric topic to taking a lead role in being the major topic of discussion among litigators. If certain proposed modifications to the Federal Rules of Civil Procedure are implemented, which provide special rules for dealing with e-discovery, it is going to become part of every federal litigation. The parties would be required to address electronic discovery explicitly at the beginning of every case. In addition, in a very short time it has gone from being an issue with sparse law and commentary to guide practitioners and their clients to an issue with a rapidly developing and fairly voluminous jurisprudence. There has also been a great deal of technological development, on the basis of which a new industry of e-discovery service providers has emerged.
Editor: What kinds of services are these providers offering?
Cohen: There are basically two categories I have in mind. One group assists companies in dealing with the enormous quantities of computerized data, such as e-mails, that may be relevant to a litigation or other legal proceeding or investigation. They are in the business of transforming this data into a manageable form, and providing online review tools to help attorneys review and code documents online.
A second category includes experts in computer forensics. These are the people who recover deleted e-mails from hard drives or track down anonymous Internet users. Just a few years ago, computer forensics experts were found mainly in law enforcement agencies. Today they are at the center of the new e-discovery and information processing industry.
Editor: You referred to the treatise that you co-authored with Mr. Lender, Electronic Discovery: Law and Practice. What was the origin of this project?
Cohen: The literature on e-discovery started to proliferate a few years ago, but we felt that it was rather unsatisfactory and for the most part failed to provide much in the way of practical guidance to litigators. In 2001, Jim Quinn, the head of Weil Gotshal's global litigation practice, saw the writing on the wall and asked David and me to create a set of internal guidelines on e-discovery. The outline we produced was very well received by our partners, and it was then circulated more broadly outside the firm. This, then, received some notice from a number of publications - David and I published a two-part article based on the guidelines in The Metropolitan Corporate Counsel in May and June of 2001, for one - and the upshot was that Aspen Publishing asked whether we were interested in writing a treatise on the subject. Our idea, in meeting that request, was to analyze the existing cases, as well as the literature, in order to illuminate the emerging jurisprudence and, at the same time, to provide practical assistance to litigators dealing with new developments in this area.
Editor: Why is it so important that a company have a document management and retention program?
Cohen: Controlling information today is very different from what it was even five years ago. This state of affairs derives from the dramatic increase in the volume of electronic information, such as e-mail, and the ability to store it in ever smaller space and at an ever decreasing cost. That is, we are keeping more information. Then, when you become involved in litigation, identifying and producing information which is relevant to the case is crucial. If a program is in place whereby the information can be preserved, retrieved, reviewed and produced, electronic discovery can proceed relatively painlessly. The consequences of not having such a program in the face of litigation are horrendous. An increasing number of court decisions impose severe sanctions on corporations lacking such programs, and thereby the ability to respond to an electronic discovery demand in a coherent manner.
Editor: What types of things should a good document management and retention program cover?
Cohen: That's a hard question to answer briefly, but some important examples come to mind. The program should include an identification of the different types of information the company utilizes. It needs to have clear and specific procedures come into play as soon as a duty to preserve arises. There should be defined lines of communication to implement preservation requirements, and technical procedures agreed upon by the IT people in the organization should be in place. Responsibility for the implementation of the program and enforcement of the rules - in a uniform and consistent manner - should be assigned to specific individuals.
Editor: When does the obligation to preserve documents in anticipation of litigation arise?
Cohen: The standard that has been articulated by the courts is that the obligation arises with a reasonable anticipation of litigation, not on service of a summons and complaint. It can arise from any number of pre-litigation circumstances, and this makes for difficulties. For instance, the threat of litigation - even a threatening letter from a lawyer - does not always give rise to the duty to preserve. The problem, from the standpoint of electronic discovery, is that if the company makes the wrong judgment call - or to be accurate a different judgment call than the court - on when the duty to preserve arises, the consequences can be very severe in terms of information lost and spoliation claims.
Editor: How do you determine what documentation is relevant?
Cohen: That is also a difficult question. The ambiguity in knowing when the duty to preserve arises is matched by the ambiguity in knowing what to preserve. I think that prudence dictates taking a broad view in these circumstances. It is necessary to make an assessment of what the claims are likely to be - even in the absence of a complaint - as well as the anticipated defenses, and what kinds of information are likely to be considered relevant to those claims and defenses. It is important to remember that the duty to preserve is not coextensive with the duty to produce. If the information is preserved, it is always possible to argue that it should not be produced. If it has not been preserved, however, there is a risk of a charge of spoliation and potential sanctions.
Editor: Please tell us about "spoliation of evidence?"
Cohen: Spoliation is a legalistic way of saying "destruction." The problem in the age of e-discovery is that seemingly innocuous, routine procedures can give rise to spoliation claims. For example, many companies automatically delete e-mail from active computer servers on a regular, scheduled basis. If that schedule is not modified or suspended at the time when the duty to preserve arises, a spoliation of evidence situation may ensue. Supposing the elimination of the information was unintentional? The majority view appears to require the presence of some element of intentional, willful bad faith in the form of a desire to suppress the truth for severe sanctions to apply. In the Second Circuit, however, the law permits the imposition of an adverse inference of spoliation even where the elimination of information is merely negligent. One of the proposed modifications to the Federal Rules of Civil Procedure would add a safe harbor addressing situations where, despite reasonable steps taken to preserve evidence, information is lost through the routine operation of computer processes. The question of what constitutes sanctionable spoliation of electronic evidence is probably the most important issue in electronic discovery today. It certainly constitutes the largest chapter in our book.
Editor: How does a respondent avoid disclosing privileged information?
Cohen: This is another difficult issue. When you are reviewing tens of thousands of e-mails for production, it is easy to miss one or two privileged communications. One solution is to spend a lot of money having the information carefully reviewed by a large number of expensive lawyers. Another is to enter into an agreement with the other side that any production of privileged information is inadvertent and will not be considered a waiver. Most often, a combination of both is required. Usually, the court will endorse such a "clawback" arrangement. An issue that then arises, however, is the impact such an agreement may or may not have on a third party - someone not privy to the agreement and in a position to argue that the privilege has been waived as to them in the act of production. There is also the classic problem of the information being out there once it has been produced irrespective of the privilege not having been waived. The issue of privilege waivers is something that the proposed modifications to the FRCP attempt to address.
Editor: What governs the shifting of costs between the parties on electronic discovery?
Cohen: There is a developing jurisprudence on cost shifting in electronic discovery, but the problem is that it is at the district court level and is of limited precedential value. Magistrate Francis of the Southern District of New York, in the Rowe case, devised a multifactor test to govern the shifting of costs. This was modified by Judge Scheindlin in the celebrated Zubulake opinion, which is now treated by many litigants and courts across the country as the standard electronic discovery cost shifting test. Notwithstanding the great attention this issue has attracted, there is still a presumption that the producing party pays for the cost of production, and, accordingly, it has an uphill fight to convince the court to shift that cost.
Editor: The federal and state rules in this area are not always in sync. Is this going to be resolved in time?
Cohen: I am not sure that the differences between state and federal law are going to be resolved. One of the issues that has been driving the proposed modifications to the FRCP is that district courts all across the country have been enacting their own rules on electronic discovery, and they are not uniform. At the same time, even national federal rules in this area would be more in the nature of general guidelines than anything else, and that is necessary because the technology is changing so quickly. Rules that are too specific might well be obsolete before the ratification process is completed. That makes case law particularly important, and as it evolves, and courts begin to rely on prior decisions, we may see at least the beginnings of guidance in this area.
Editor: What about the future? This is an area of law that appears to be developing very quickly. What is next?
Cohen: There is a tension at play here between an evolving storage technology - which enables us to save and retrieve even more information at less cost - and the need to control spiraling litigation costs. At the same time, software solutions are emerging to give us greater control over this expanding volume of electronic information. As in other areas, in electronic discovery technology is making our lives more difficult and easier at the same time.
Published November 1, 2004.
