The Spectre of Future Discovery Conundrums

July 27, 2010 - By Virginia P. Henschel
The New York Times featured a wide ranging article last week by Jeffrey Rosen, The Web Means the End of Forgetting - NYTimes.com , about the consequences and sociological environment that Web 2.0 has created for active social media users. The article dovetails with many of the concerns we have expressed in this blog. However, I am most interested in the portion of the article dealing with the user encryption of data for self-destruction. This capability raises the spectre of future discovery conundrums; such as the efficacy of future litigation holds and what will be the future of “reasonableness” standards for preserving the attorney-client privilege in electronic communications?

We first became interested in the notion of ‘smarter’ data during discussions at the ITech Law Association Annual Meeting in May. Tagging data at the time of creation is currently a boon to electronic records management schemes. User encrypted data for self-destruction, like the Mission Impossible assignments, is a new frontier that will raise the complexity of fulfilling discovery obligations. How will an organization enforce a litigation hold mandate to suspend this type of self-destruction encryption? Current email archiving systems would not prevent the disintegration of the coded ESI over time.

The impact of encrypting ESI for destruction has muddled implications for protecting the privilege in attorney-client communications. Am I taking reasonable measures to preserve attorney-client privilege pursuant to F.R.E. 502 if I fail to encrypt my electronic communications for erasure? If the communication must be printed to preserve it, will paper become a principal discovery medium again?

Destruction encryption doesn’t solve the rampant problems stemming from social media sites – because frequently the most damaging content is posted by one’s purported friends. Unless encryption becomes mandatory for social media sites, all the questionable content that impacts employment, education and the user’s personal life will continue to proliferate. As social media controls evolve, those technologies will impact significantly methods for compliance with legal discovery obligations. The advent of ESI encrypted for destruction will require modifications to preservation technologies and protocols, evolution in case law and revisions to federal and state discovery rules of procedure. The legal community needs to take user determined destruction of ESI into consideration now, before destruction encryption becomes a regular practice in organizations.

Virginia Henschel is Vice President of E-Discovery Affairs for Applied Discovery. In this role, she advises clients on best practices for litigation readiness for e-discovery, including data mapping, database development, litigation hold notices, meet and confer preparation and managed reviews. Ms. Henschel previously served as E-Discovery Counsel for Sunoco, Inc., specializing in multi-district, complex litigation. Prior to joining Sunoco, Inc., she served as Assistant General Counsel for a global Fortune 500 corporation where she managed global risk and litigation.

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