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Litigation searches in the context of electronic discovery refer to researching recorded matters that involve the opposing party. Searching for other legal actions involving a party may uncover beneficial information about their data and handling thereof that can aid your eDiscovery actions in a dispute.
What Is eDiscovery?
As you know, discovery is the action in a civil dispute by which parties exchange and obtain information from each other and parties outside the dispute. Discovery can include
- Interrogating the opposing side
- Asking that party to admit certain facts in admissions
- Requesting documents through subpoenas
Discovery can also occur through face-to-face interactions called depositions. Depositions can include parties in the dispute or those external to it.
eDiscovery, or electronic discovery, is the process of obtaining digital information in a lawsuit or civil dispute. Given how people now use technology in their daily lives, from computers and email to social media to GPS systems in cars, eDiscovery permeates every civil dispute to some extent. The potential benefits of pursuing the data are often weighed against the cost of performing eDiscovery. Luckily, eDiscovery is much easier and affordable now than it was ten years ago, thanks to technological advances.
eDiscovery comprises four stages: preservation of relevant data, collection of that data, reviewing the data, and finally giving it to the party that requested it. eDiscovery relates only to electronically stored information or ESI and is limited to relevant data.
What Is Relevant Data?
Each dispute has different relevant data, as the facts and claims of each case differ from others. Typically, litigators will set parameters for relevant data. These parameters include:
- Time frame: Only consider data that was created, shared, or modified during a certain time
- Author: In a dispute between person A and person B, person C’s data won’t be examined by default
- Keyword: Use strategically chosen keywords that connect with the dispute to narrow down the data
Many practitioners initially tell their clients to preserve every byte of data for all time. Then, they collect that massive amount of data and sort through it. Wading through so much data can be time consuming and challenging. That’s why eDiscovery experts clearly define data parameters early in a dispute.
Relevant data can reside on devices within individuals’ control and use, such as computers, phones, and tablets. It can also encompass their communications during the established time frame. Once practitioners establish the first two parameters and collect that data, they use the terms or keywords the parties used to weed out the data unrelated to the case. Whatever information is remaining then becomes relevant data.
What Are Litigation Searches?
Now that you understand what eDiscovery is and how it works, you can understand the context for litigation searches in eDiscovery. A civil lawsuit or other dispute, such as private arbitration, can have many primary parties filing claims against several defending parties. The defending side can reach out to other parties and bring claims against those third parties. Thus a garden-variety civil lawsuit can, in theory, involve multiple parties or businesses that can expand and grow to include many more.
In construction litigation, for example, many contractors, subcontractors, and independent contractors can be parties to a suit about a structure that fails, causing injury and property damage. A recent example of this complex commercial litigation structure is the Surfside Condominium collapse in South Florida.
A litigation search reveals all legal cases your opponent was party to. As part of the eDiscovery phase, litigation searches may reveal critical issues such as that party’s past conduct in other cases, any sanctions imposed on that party, and even that party’s other disputes that may have involved relevant data.
How do Litigation Searches Work?
Suppose a group of plaintiffs sued your client's business along with several others. Some codefendants have sued third parties to bring them into the lawsuit. Let’s assume that litigators properly crafted the pleadings framing the dispute claims and the court resolved any challenges by motions to dismiss. Counsel, the client, and the client’s IT department have already engaged in a comprehensive discussion about what relevant data exists and where it resides. Now, the parties start to discuss the data they have. This discussion might be a formal conference required by procedural rules to promote efficiency and professionalism. At this time, counsel will likely conduct their litigation searches to evaluate the competition.
Lawsuits are public records that may contain relevant information. You can search lawsuit documents with free or paid tools. Likewise, internet searches can provide invaluable information about past cases. Each case stands on its own merit, meaning that the unique facts that litigators properly introduce into evidence decides each case. In civil cases, conduct by a party in an unrelated dispute is often inadmissible as it bears little relation to the instant dispute. However, in the context of eDiscovery, it can be useful to know whether the other party was or is involved in a dispute with data that is also relevant to the instant matter. It would also be helpful to know how that party conducted itself in the parallel case and whether that party was sanctioned in eDiscovery there.
An Example of Litigation Search
Between March 1 and September 1 of 2020, your client (person A) negotiated a contract with person B. Persons A and B were negotiating to open an ice cream store together. Experts identified the following parameters for relevant data:
- documents created, edited, or shared between March 1 and September 1
- sent or received by persons A and B
- that relate to the contract for the ice cream store
- that would sell chocolate, vanilla, and strawberry ice cream
You choose the keywords ice cream, chocolate, vanilla, and strawberry to narrow your search. You request data that fit these parameters from person B. Person B responds that they have no documents fitting that criteria.
But you don’t stop there. You then perform a litigation search involving person B. Sure enough, you find an ongoing contract dispute with an ice cream supplier specializing in chocolate, vanilla, and strawberry ice cream. Those case documents contain a request for person B to provide ESI documents from November 1, 2019, to April 15, 2020, about the ice cream and flavors. Now there are two options: (1) No records indicate that such documents don’t exist. Or, (2) you then discover a judge ordered person B to provide those documents and person B complied.
This scenario highlights two possible outcomes in our fictional dispute:
- Person B has the records and says they don’t because the documents will prove your claims.
- Person B deleted the records wrongfully but presented the documents in the other lawsuit. In this case, the judge might penalize person B. For example, they might have to pay for the cost of obtaining those documents. Or, the judge might impose some other sanction on them.
Thus, a litigation search in eDiscovery can uncover valuable information with minimal time and effort on your part.
Our common law legal system is predicated on the concept of stare decisis. That means that precedent defines the outcome of a dispute based on its unique facts. The parties in a dispute obtain and exchange those facts through the discovery process.
As technology has permeated all aspects of modern life, the legal system has responded by defining rules applicable to the electronic discovery of that digital data. Parties have obligations to preserve and maintain data that is relevant to a dispute. However, it is a rarity that civil courts will allow intrusive searches of devices in attempts to locate that relevant data. The courts must balance personal privacy concerns against the desire to obtain what one side deems relevant data important to their claims.
When an opposing party claims to have no relevant data, a search of other litigation involving that party may reveal that party is less than truthful in those claims. So, a litigation search can complement electronic discovery efforts. It’s simple to perform and may uncover significantly helpful information that turns the tide of eDiscovery data production and costs.
About the Author
David Steinfeld, Akshita Singhal & Lianna Vaughan
This post was written by David Steinfeld. David is a Florida Bar Board Certified business lawyer with 25 years of experience. AV-Preeminent Rated. Ranked by Best Lawyers in America. Florida Super Lawyer and Legal Elite. (https://www.davidsteinfeld.com/) This post was reviewed and published by Akshita and Lianna, the in-house team of Venio.