Virginia E-Discovery Rules

The past few years have witnessed a dramatic change in the way discovery is conducted in Virginia.  Both the federal courts and the Supreme Court of Virginia have amended the discovery rules to accommodate the ever-growing use of Electronically Stored Information (ESI).  With the advent and expansion of cloud computing, remote storage, mobile devices, and large capacity drives, the new rules are now being applied to virtually all litigation and legal disputes.

For example, the Federal Rules of Civil Procedure explicitly address ESI.  Rule 34(a)(1)(A) provides that electronically stored information “including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form” may be requested in discovery.   The days of paper-only production are behind us.  More importantly is the use of metadata to validate production, issues related to spoliation, and other irregularities that may cause a party, whether willingly or unwillingly to be in violation of e-discovery rules.

Not left behind are the Rules of the Supreme Court of Virginia.  The Virginia e-discovery rules are modeled similarly to the FRCP.   Just like the Federal Rules, the Virginia e-discovery rules broadly define the scope of electronically stored information. For example, Rule 4:9 provides that ESI includes “writings, drawings, graphs, charts, photographs, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by respondent into reasonably usable form.  For the modern litigant, this means that not only the computer, hard drives, and similar media are discoverable.  Now even mobile devices such as tablets and smartphones are at play.  So are online accounts maintained with services such as Twitter, Facebook, LinkedIn, etc.

This constant evolution in the scope and application of ESI has a direct impact on the daily routine of attorneys, law firms, and litigants.  The always evolving e-discovery rules have also created an environment where discovery abuses are more detectable and less tolerated.  As Virginia electronic discovery and ESI consultants, we assist our clients in ensuring compliance with the rules and in identifying discovery abuses.  Our technical background in computer forensics procedures and knowledge of Virginia e-discovery rules place us in a unique position to provide value-added services.

An example where the ESI rules have evolved in in the format required when ESI is produced.  As an example, Federal Rule of Civil Procedure 34(b)(1)(C) and Virginia Rule of Civil Procedure 4:9(b)(i) allow the requesting party to specify the form or forms for ESI production.  No longer can information be merely produced as it is kept “in the usual course of business.” For example, when e-mails are produced during the discovery process, the requesting party can now specify that the producing party must provide the electronic version of the e-mails.  This facilitates the forensics analysis of the data, including items such as keyword searches, etc.  The production may also involve the forensic analysis of smartphones, which may also need to be produced.

There are also limits to what can be requested.  For example, “a party need not
produce the same electronically stored information in more than one form.”  See DE Techs., Inc. v. Dell, Inc., 2007 U.S. Dist. LEXIS 2769.   A critical issue, given the fragility of ESI, its preservation is critical and potential spoliation can be a major concern.  Even before litigation begins, the duty to preserve evidence extends to “that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”  Buckley v. Mukasey, 538 F.3d 306, 323 (4th Cir. 2008).  The Eastern District of Virginia, Richmond Division, articulated the tone of these obligations in the case of In Samsung v. Rambus, Inc. The Court stated “[i]t is difficult to imagine conduct that is more worthy of being considered litigation misconduct or more worthy of sanction than spoliation of evidence in anticipation of litigation because that conduct frustrates, sometimes completely, the search for the truth.”   Samsung v. Rambus, Inc., 439 F.Supp.2d 524, 535 (2006).    A similar articulation of these principle was  “[i]f the party does not own or control the evidence, the party still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence.” Stallings v. Bill-Jax, Inc., 243 F.R.D. 248, 251 (E.D.Va. 2007).

At AVM Technology, LLC, our services include not only consulting regarding the e-discovery rules in Virginia but also the analysis of the evidence from a sound perspective.  Litigants, attorneys, and law firms should not have to select a firm to provide ESI consulting and a different firm to perform sound computer forensics analysis in Virginia, evidence recovery, or classification of ESI.  We offfer a one-stop ESI and e-discovery shop in Virginia.  To discuss how we may be able to assist with electronic discovery issues, contact AVM Technology, LLC.

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