Discovery of Corporate Computer Databases - A Commonplace Practice
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The law has finally entered the information age. Even though it has been common knowledge for years that the vast majority of corporations store their records on computer databases and internal intranets, the law has been slow to recognize that computer searches are a necessary component to civil discovery. Now, computer searches are granted as a matter of course. Courts and civil discovery rules acknowledge that discovery requests seeking computer database and intranet searches should be routinely granted. These searches almost always unearth dozens of documents responsive to discovery requests that were not produced during “paper” discovery. Furthermore, a properly conducted computer search can lead to this discoverable information without unnecessarily inconveniencing the party whose data is searched and while protecting its assertions of privilege. Most corporations maintain an extensive network of computerized information. Databases store millions of documents which can be “searched” or referenced through various data search techniques and codes. Internal intranets provide manuals and links to other corporate documents on the desk of every corporate employee. Computers link employees and allow them to share information among different offices and divisions of the corporation. Corporate defendants routinely use computer document storage and retrieval systems to catalog voluminous materials. To gain access to this information, it is necessary to propound specific discovery requests seeking access to this computerized information. Typically, corporations object to a computer search by arguing that they have already conducted such a search and provided the requesting party with responsive documents. Corporations also argue that they should not be required to provide access to their databases unless the requesting party demonstrates that the corporation has not made a good faith effort to obtain responsive documents. These arguments are routinely rejected. Access to computer databases is neither novel nor untested. Both discovery rules and courts recognize that this information is discoverable. See, e.g., United States v. Microsoft Corp., 1998 WL 699028, at *2 (D.D.C. Oct. 2, 1998) (holding that original databases and accompanying tools are clearly within the scope of discovery); Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934, *2 (S.D.N.Y. Nov. 3, 1995) (recognizing that the argument that computerized data does not have to be produced just because hard copies of the information have already been provided was rejected fifteen years ago and holding that it is black letter law that computerized data is discoverable if relevant); Santiago v. Miles, 121 F.R.D. 636, 639-40 (W.D.N.Y. 1988) (finding that a “request for raw information in computer banks via a properly designed computer request is proper and obtainable under the discovery rules”); Bills v. Kennecott Corp., 108 F.R.D. 459, 460-61 (D. Utah 1985) (recognizing that “[c]omputers have become so commonplace that most court battles now involve discovery of some type of computer-stored information” and explaining that “[i]t is now axiomatic that electronically stored information is discoverable under Rule 34 of the Federal Rules of Civil Procedure if it otherwise meets the relevancy standard prescribed by the rules . . .”); Daewoo Elecs. Co. v. United States, 650 F. Supp. 1003, 1006 (Ct. Int’l Trade 1986) (“It would be a dangerous development in the law if new techniques for easing the use of information became a hindrance to discovery or disclosure in litigation. The use of excessive and technical distinctions is inconsistent with the guiding principle that information which is stored, used, or transmitted in new forms should be available through discovery with the same openness as traditional forms.”). Even when corporate attorneys select the documents to be included within the databases, courts have ordered that such databases be made available for inspection and review. See Brazil v. General Motors Corp., C.A. No. 7-99CV-001-X (N.D. Tex. 1999) (rejecting GM’s attorney-client privilege and work product claims with respect to a post-collision fuel-fed fire database and ordering GM to provide plaintiffs access to the database); see also Scovish v. Upjohn Co., 1995 WL 731755 (Conn. Super. Ct. 1995); Minnesota v. Philip Morris, Inc., 1995 WL 862582 (Minn. Ct. App. 1995). If the computer search is properly tailored, it will provide the necessary protection to corporations to assure that privileged documents are protected from disclosure. A typical search allows the corporation to review the screens responsive to the plaintiffs’ search before showing the documents to the requesting party. The corporation then has the opportunity to raise appropriate privilege objections pursuant to the process outlined in the proposed order. This process should negate any privilege objections the corporation might maintain in objecting to this request. Corporate defendants have also recognized the propriety of requests for access to document databases and have provided access to their own databases in product liability litigation, without judicial intervention. See, e.g., Svoboda v. Mosey Oldsmobile, Cause No. 90-053353 (113th Jud. Dist., Harris County, Texas); Bourgault v. General Motors Corp., Civ. Action File No. 1:91-CV-440 (N.D. Ga.). General Motors, the world’s largest automotive manufacturer, recognizes that database searches fall well within the purview of discovery and routinely consents to them. In a recent case in Georgia, Bampoe-Parry v. General Motors Corp., Civ. Action File Nos. 98VS138297J & 98J (Fulton County, Ga.), GM consented to a computer database search without judicial involvement. The Georgia Civil Practice Act expressly authorizes parties to search and access information stored on computer databases. O.C.G.A. § 9-11-34 (permitting party to serve requests for such things as “data compilations from which information can be obtained”). The definition of “documents” in Rule 34 of the Civil Practice Act is identical to that used in the Federal Rules. As the Advisory Committee’s Notes to Federal Rule of Civil Procedure 34 make clear:
Advisory Committee Notes to Fed. R. Civ. P. 34. In Georgia and elsewhere, access to computer database searches has not only become commonplace, but in some instances, it is the only way in which a party can discover pertinent and relevant information in a case. In fact, the Manuel for Complex Litigation also recognizes that “[c]omputer-stored data and other information responsive to a request will not necessarily be found in an appropriately labeled file” and that “[b]road database searches may be necessary.” § 21.446, at 80 (3rd ed. 1995). As discovery rules and court orders recognize, discovery of computerized information is a well-recognized and commonplace part of civil discovery. Corporations are no longer being allowed to withhold access to this discoverable information. A properly formulated request for discovery of this computerized information will now likely result in its disclosure. |
