In my post, "Electronic Discovery: What To Do in Every Case," I discussed some of the basics of electronic discovery, including a suggestion that you should embark on discovery early in the case to determine the scope of the opposing party's computer capabilities and the ways the opposing party manages its data.
This discovery can take the form of interrogatories, requests to produce, or depositions, either of a corporate representative or a designated IT employee. What sorts of things do you want to find out in these early stages? Here are some areas to focus on--
- What type of computers and networks are used by the opposing party's employees?
- What types of information are stored on the opposing party's computers?
- Who is responsible for the design and maintenance of the opposing party's computer systems?
- How does the opposing party insure that its electronic information is backed up electronically?
- Does the opposing party have a document-retention policy, and what does it say?
The idea is to find out what sorts of information is stored on the opposing party's computers that will be useful to your case. After you conduct preliminary discovery, you can begin with more detailed requests for information.
My own preferred method of discovery at this stage is a deposition of a corporate representative under the procedures of Fed. R. Civ. P. 30(b)(6) or a state-court equivalent. Here are some suggested deposition topics for your notice, taken from a notice I used in one of my own cases:
Topics of Examination
1. [Opposing party's] computer system configurations, including, without limitation, the type the computers and other hardware used, desktop and network operating systems, and the type of network and communication software and hardware used.
2. [Opposing party's] computer application software and utilities, including, without limitation, all application software and all utilities used on [defendant's] networked systems.
3. [Opposing party's] databases, including, without limitation, all records and fields and structural information and such databases containing any reference to, or information about, communication or contact with potential or current customers of [opposing party], payments by customers to [opposing party], or complaints by such customers or potential customers.
4. [Opposing party's] computer back-up procedure and frequency, including without limitation, the name and version of the back-up software used, the type of media used, the schedules used for incremental and full back-ups, the length of time back-ups are kept, how often back-up media is reused, and how back-up media is indexed and stored.