Mark E. Swirbalus, Esq., Goulston & Storrs, P.C.
Marshall D. Senterfitt, Esq., Goulston & Storrs, P.C.
T&E practitioners may think that the new Massachusetts rules governing electronically stored information (“ESI”) do not apply to their practice, but they would be wrong. The new rules do apply and likely will bring big changes to T&E litigation.
As most counsel are (hopefully) well aware, the Massachusetts Rules of Civil Procedure were amended effective January 1, 2014, bringing the rules concerning electronic discovery more in line with the Federal Rules of Civil Procedure. Among the amendments are provisions that: (1) expressly allow for (and sometimes require) counsel to meet and confer about electronic discovery issues; (2) grant courts authority to manage the scope of electronic discovery; (3) place limits on what ESI must be collected and produced; (4) provide claw-back rights in the event of the inadvertent production of privileged material; and (5) eliminate sanctions for spoliation of evidence in certain circumstances. See Mass. R. Civ. P. 26(f) and 37(f).
Interestingly, the primary purpose of the amended rules – to address the “staggering growth of information in electronic form today” (see Reporter’s Notes to Mass. R. Civ. P. 26(f)) – may not be of great importance to many T&E litigators. T&E disputes often involve fewer documents and less data than most complex civil business cases. In fact, the Supreme Judicial Court’s Standing Advisory Committee on the Rules of Civil Procedure considered making the new electronic discovery rules applicable only to the Superior Court, which regularly handles large complex civil matters. The Committee ultimately determined, however, that electronic discovery impacts nearly all litigants and thus should apply to all trial courts in Massachusetts. See Reporter’s Notes to Mass. R. Civ. P. 26(f).(FN1)
Although the use of predictive coding to search for a digital smoking gun hidden amongst terabytes of data may not concern most T&E litigators, electronic discovery will become a fundamental element of many T&E disputes for at least two reasons. First, Rule 26(f) applies not only to data residing in a multinational company’s enterprise e-mail system and off-site server farm, but also to data found on an individual’s Gmail account and home computer. Second, the burgeoning use of e-mail, text messages and social media has created countless new sources of ESI that T&E litigators will and should pursue in support of their cases.
One example of a relatively new source of evidence that will play a role in T&E disputes is the now ubiquitous smartphone. Once upon a time (i.e. less than 10 years ago), when people used cell phones solely for voice calls and iPods solely to play music, neither device held evidence of much import to most cases. That is no longer true. A recent study by the Pew Research Center’s Internet & American Life Project found that in 2013, 91% of American adults owned a cell phone.(FN2) Of those phone owners, 81% sent or received text messages (including 75% of users aged 50-64 and 35% of users over age 65), 60% accessed the internet from their phones, and 52% used their phones to send and receive e-mail. Id.
A similar study in 2012 found that 82% of cell phone owners took pictures with their phones, 44% recorded videos, and 29% used their phones for online banking.(FN3) The trend is undeniable. In a telling sign of just how reliant people have become on their phones, 25% of married or partnered adults have communicated with each other by text message while they were both home together.(FN4) Given the increased reliance people place on their smartphones for all manner of everyday uses, most of which involve the capture and/or transmission of information, it is conceivable that the contents of a single smartphone could make or break an entire case.
Of course it is not just phones that hold potentially crucial ESI – old fashion desktop computers, laptop computers, tablet devices and ever more popular “wearable” devices all hold and transmit ESI. These devices also utilize a vast array of applications (aka apps) that collect and use personal information and data for everything from accessing and maintaining social media accounts and managing personal finances, to tracking the location of other devices to help people find their friends or avoid their enemies. As new technology and uses of that technology emerge, so too do new forms and formats of electronic evidence.
Although the Probate Court has not historically been a proving ground for cutting edge legal technology, the application of the new e-discovery rules to all trial courts, coupled with the expanding universe of personal digital information available to litigants in discovery, may cast T&E litigators and probate court judges as pioneers. While lawyers trying complex civil matters are at the forefront of some ESI issues, such as computer assisted document review, there are other issues that might arise in Probate Court long before they are addressed in the Business Litigation Session of the Superior Court or federal court. For example, what are the preservation obligations with respect to a minor child’s social media account? Who has possession, custody or control over such information? The child? The parent? Two parents? The social media company? These are but a few of the myriad questions that will have to be addressed in the very near future.
Further, the incredible growth of social media is more likely to impact T&E matters than many other types of cases. In 2013, 73% of all American Adults who used the internet also used at least one social networking site (with 71% of all online adults using Facebook, including 45% of all online adults aged 65 and older) and 42% used multiple social networking sites.(FN5) Although the increased use of social media may occasionally play a role in business disputes, social media content is seemingly tailor-made for many T&E disputes. For example, the video posted online of recently-deceased aunt Edie dancing at a wedding and giving a witty congratulations speech is of little use in a contract dispute, but it may prove crucial in proving that aunt Edie had testamentary capacity when she signed her will that very same afternoon. It appears a foregone conclusion that people will continue to capture and post much of their lives on line for all to see. T&E litigators should do everything possible to adapt to this brave new world of digital evidence.
Despite the fact that the new e-discovery rules are upon us and James Bond’s watch phone is now a reality, T&E litigators do not need to become technophiles overnight (although it probably would not hurt). All counsel should be familiar with the provisions and requirements of the newly amended rules, however, and be prepared to request and produce relevant ESI. Of particular importance is ensuring that clients preserve ESI to avoid any threat of sanctions or other negative consequences. And, to the extent counsel’s idea of e-discovery is scanning paper files into a PDF and then e-mailing them, he or she should make a dedicated effort to learn about the most common forms of ESI, the sources of such information, and the basics of handling ESI in discovery and subsequent phases of litigation. Fortunately, there is no shortage of educational material, both online and in books made of actual paper, that explain the past, present and future of ESI in relatively simple terms.
FN1: It is important to note that although the newly amended rules apply to equity matters pending in the Probate Court (Mass. R. Civ. P. 1) and appear to be incorporated into the Supplemental Rules of the Probate and Family Court (see Supplemental Rule 27A), the Massachusetts Rules of Domestic Relations Procedure have not been similarly amended . Accordingly, although proceedings governed by the Rules of Domestic Relations Procedure often involve e-discovery, it is unclear if, when and how the newly amended Rules of Civil Procedure will be applied to such matters.
FN2: Pew Research Center, September 2013, “Cell Phone Activities 2013,” available at http://www.pewinternet.org/2013/09/19/cell-phone-activities-2013/).
FN3: Pew Research Center, November 2012, “Cell Phone Activities 2012,” available at http://www.pewinternet.org/2012/11/25/cell-phone-activities-2012/
FN4: Pew Research Center, February 2014, “Couples, the Internet, and Social Media,” available at: http://pewinternet.org/Reports/2014/Couples-and-the-internet.aspx.
FN5: Pew Research Center, January 2014, “Social Media Update 2013,” available at: http://pewinternet.org/Reports/2013/Social-Media-Update.aspx.