Litigation in an Electronic Age


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Prior to November 2011, early-stage litigation consisted of four basic steps: 1) plaintiff’s filing of a complaint, 2) defendant’s filing of a response, 3) plaintiff’s disclosure of potential fact witnesses, relevant evidence, and damage calculations, and 4) defendant’s disclosure of potential fact witnesses and relevant evidence.  No party was required to produce for the other party any of the relevant evidence.  Only minimal detail needed to be provided about the fact witnesses’ expected testimonies.  Thus, in order to learn pertinent details about witnesses and evidence, litigants were forced to send written discovery requests, take depositions, or serve subpoenas, all at significant cost.  Additionally, this early-stage litigation framework allowed lawyers and clients to delay conversations about relevant evidence and its whereabouts, although that was not Kesler & Rust’s practice.

Early-stage litigation in Utah changed dramatically in November 2011.  Abandoning the above “disclose then wait” framework, Utah adopted a “disclose and produce” system that required litigants—at the outset of litigation—to disclose and produce relevant evidence and disclose in greater detail the expected testimony of potential fact witnesses.  If a party did not timely or completely produce relevant evidence, the new framework allowed several sanctions to befall the non-producing party, from modest monetary sanctions or denying use of evidence to stiff fines or dismissal of the case.  This shift intended to accomplish more efficient litigation by requiring that parties show each other their respective hands.  Whether that shift actually has helped improved the efficiency of litigation in Utah remains to be determined.  However, it is undeniable that this shift in procedure has accelerated the need for lawyer and client to have early discussions about potential fact witnesses, relevant evidence, and the location of this relevant evidence.  To produce evidence, lawyer and client alike had to know where it existed.

Not too recently, “relevant evidence” generally consisted of documents and people, enabling lawyer and client to visit a stationary file cabinet to ascertain what documents might be produced in litigation.  Those days are gone.  With the advent of laptops, smart phones, tablets, thumb drives, removable hard drives, emails, text messaging, etc., “relevant information” could be found on the smart phone in a litigant’s pocket, the tablet by an employee’s bedside, in a worker’s Facebook posts or Twitter feeds, saved to an external hard drive, in an SMS text message, or an email in a web-based email account.  “Relevant evidence” could be anywhere capable of storing electronic information.

If you are confident that you would be able, in the event of litigation, to quickly identify all the possible storage locations of relevant evidence and quickly retrieve that information to produce it for inspection, congratulations.  You just might have systems in place that will allow you to participate in litigation without fear of discovery-based sanctions.  On the other hand, if you are less sure which of your employees uses a smart phone, tablet, or web-based email account to conduct business, or how many of your employees post about work on Facebook, we can help.  Kesler & Rust has helped numerous clients establish evidence control systems that make management of information—and litigation— in the electronic age easier, more efficient, and less costly.