Relevant data. As attorneys and eDiscovery practitioners, we talk about it all the time. The idea of relevant information is baked into our rules of procedure and rules of evidence. Pretty much every provider of eDiscovery software or services suggests - or outright declares - that its offerings will help you find the information you need: "the needle in the haystack", "the smoking gun", "the signal in the noise".
But what is relevant data? And why should you care about it?
Before we get to "what", let's focus on "why". Why would you want relevant data?
If you are contemplating initiating a lawsuit, you want to get and evaluate enough data to determine whether you have a viable case, to indicate what causes of action and defense are available to you, to get a sense of the damages you want to seek.
If you are a party in an active matter, data accessibility is important for making decisions such as whether to settle or to proceed, what causes of action and defenses to assert, which witnesses might be useful. You need data to be able to plan effective strategies and frame and pursue courses of action. You have to have data to build your case, test it, and strengthen it, as well as to identify weakness in the case you think the other side plans on presenting.
Investigations are similar. There, too, you need to find out what happened as well as to determine what actions you should take in response to the investigation, and data quality and relevance inform that decision making.
We all know that "relevance", like beauty, is in the eye of the beholder.
Opposing parties can, and often do, have very different views as to what constitutes "relevant" information. If they are unable to resolve their differences of opinion, they may turn to the court for guidance.
Safe to say, sorting out differences over relevance is not, for most judges, their favorite part of the job. Judges frequently opt not to take up the parties' requests for the judge to define relevance, instead sending parties away to work it out amongst themselves.
As a general proposition, a data point is relevant if it tends to prove or refute something that matters in a case. Of greatest import, data can be relevant if it supports or undermines a cause of action - a set of predefined factual elements that allow for a legal remedy. In a breach of contract matter, a plaintiff might need to prove four elements:
Relevant materials could include:
When you seek data - relevant or not, your client's or someone else's - there are basically four forms of data for you to go after. They are:
When it comes to ESI, virtually any type of data stored electronically could contain relevant content. A few examples include:
If you are seeking data from your own client, you have a lot of latitude. Relevance is more of a practical consideration than a legal one. Rules governing how we practice law, such the Federal Rules of Civil Procedure, the Federal Rules of Evidence, their state counterparts and similar rules in other jurisdictions, generally don't come into play.
A key way to get at data, regardless of form or type, is to ask clients, both individual clients and organizational ones. You likely will talk with people who have direct knowledge of the matter, and others who are farther from the center of the action. You will ask them to tell you about things that happened. You might ask them to explain something to you, such as how a braking system works.
You also will ask them about information that has been recorded on paper or electronically. You will ask about their use of communications systems such as email, about where they store documents and files, and their access to content from others.
To assist you in getting to, and understanding, the information you may need for the matter, you can turn to people in addition to those with knowledge about the matter. You might seek help from your client's IT personnel. You might engage an independent investigator. You might call on the services of an eDiscovery provider.
Some of the information you seek from clients will clearly pertain to the matter you are working on. Other information might not. You might look for privileged content. You might search for potentially embarrassing information contained in documents that also have relevant content. You might try to identify content that could be used as ammunition against your client in unrelated matters as as the basis for new lawsuits.
The real limits placed on you, when you seek data from your own client, don't come from places such as the Federal Rules. Rather, they are a function of factors such as how much time and money are available to search for data, how much disruption the searching causes to your client, and whether this is a one-off case with little in the way of larger implications or a matter where larger policy concerns are in play.
When you start going after other people's data, including data from the other side, that is were the various rules tend to kick in. And that is where "relevance" matters most in the data collection process.
For American litigators, "relevance" is rooted in the Federal Rules of Civil Procedure.
Federal Rule of Civil Procedure 26(b)(1) sets the scope of discovery in civil litigation in US Federal courts. State courts have their own counterparts, many closely modeled on the FRCP, and jurisdictions elsewhere have yet other sets of rules. FRCP 26(b)(1) states (with emphasis added):
(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 and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Let's break down Rule 26(b)(1) and step through what it means in practice.
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense...."
Under Rule 26(b)(1), the "discovery" parties may obtain is information, or data. The four forms of information that can be discovered are those described above: information stored in people's heads; information stored in tangible objects; information stored in paper; and electronically stored information.
The Rules of Federal Procedures delineate the ways one party may obtain discovery from other parties. The Rules include six mechanisms:
The scope of information that parties may obtain is constrained by three factors. First, privileged information is out of bounds. (There are, of course, circumstances where a party may get information from the other side even if that information is privileged, but we aren't going into that here.)
Second, the information being sought needs to be relevant to a party's claims or defenses. If I am representing the defendant in a matter and assert a statute-of-limitations defense, I am entitled to seek information from the plaintiff showing that the time between when underlying events occurred and the time plaintiff sued was too long.
Finally, proportionality comes into play. The Rule states that discovery sought needs to be proportional to the needs of the case and lists five factors to consider in determining proportionality. Those factors are:
These factors go to whether you ought to gain access to another party's data more than whether the data might actually be relevant. The Rule does not assign any priority to those factors, nor does it suggest how much weight to place on any of the factors. Those allocations have to be determined for each case, based on its particular circumstances.
Various mechanism are available for obtaining discovery. When working with their own clients, attorneys can talk with clients - individual clients, people in an organizational client's legal departments, their eDiscovery groups, and so on. If needed, attorneys can deploy specialists to help with identifying, preserving, collecting, and working with client data.
Under the Federal Rules of Civil Procedure, attorneys have specifically delineated ways of trying to get ESI from opposing parties:
Regardless of mechanism pursued, however, you continue to be constrained by relevance.
Whether you need to find relevant data you don't even know you have or need to find yet more data similar to the relevant data item you already know about, Reveal's eDiscovery platform can meet your needs.
If your organization is interested in learning more about how Reveal's AI-powered end-to-end document review platform can fit into your workflow and help you find the data that matters most, contact us to learn more.