During a terrific dinner with two experts in legal technology and in charge of electronic discovery services for a major international firm, I posed the following question about Rule 26 of the FRCP. A vivid conversation ensued, and I’ll spare you the play by play, and instead focus on the same questions.
“Does Rule 26 cover websites? Doesn’t a party have to review the website for relevant materials? Isn’t there an obligation to keep ensuing versions of it during the length of a litigation?”
In my mind it’s no different than a word processing document or email box, which means:
1. It has to be reviewed for relevance
Why would websites not fall under Rule 26 (a)(1)(ii) “Initial Disclosures”
“(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;”
and then under Rule 26 (b)(1) Scope in General.
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”
Maybe there is a universe where – without review – a party could claim there were no relevant materials on the marketing websites relevant to a particular litigation (anyone got an example?). But then again, maybe there is a universe where dinosaurs didn’t exist but unicorns did.
2. Versions have to be retained — making changes and “saving over” the files is prohibited.
Case law even exists. “This Court sees no reason to treat websites differently than other electronic files.” (Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc). Furthermore, it is a ruling is from a judge who is a recognized expert in electronic discovery, Judge Ron Hedges
Is there a possible reading of Rule 26 that gets around 1 and 2?
Also, same would be true of social media platforms (read: command and control). Wouldn’t it?
A spirited conversation ensued, and not one of a hypothetical nature in my mind. Full disclosure, I have a dog in the fight, our Cloud Preservation product was designed to specifically address this scenario.
What I have found so surprising is that while there is an initial reaction of most attorneys to say, “we don’t need to save it”, I still have not gotten any analysis or example by way to get around Rule 26.