Electronic Discovery in Tennessee: Rules, Case Law and Distinctions

 By W. Russell Taber III | CreateSpace | $29.95 |  288 pages | 2012

I have never been much of a horror movie fan. Werewolves, vampires and other creatures going bump in the night just don’t do it for me. But to this day I cannot watch Poltergeist. It played off of the same stuff that kept me up at night as a kid (the spooky tree outside my window or monsters in my closet). Poltergeist was terrifying because I felt like it could really happen.

The same feelings of terror arose as I read through W. Russell Taber III’s new book, Electronic Discovery in Tennessee: Rules, Case Law and Distinctions. If you want the hair on the back of your neck to stand up, read the first paragraph from the Introduction:

The era of paper discovery in Tennessee is over. Ninety-eight percent of all information is created electronically, and over eighty percent of documents are never printed to paper. Almost invariably, one or all parties to a case have a computer, a cell phone with text messaging, or an email account. Chances are they also comprise some of the world’s more than 900 million Facebook users. All of these sources of electronically stored information (ESI) are potentially discoverable in cases large or small in federal or state court.

ESI and the concept of e-discovery should not be new, but how many of you started sweating while reading the above-paragraph?

Taber wrote this book to help those of us swimming (or drowning) in the high seas of data. It outlines e-discovery from its beginnings in Zubulake I to an era in which many firms now possess a base litigation hold letter as part of their merge forms.1 Yet the book goes well beyond litigation holds and metadata scrubbing, topics we have all seen in countless CLE advertisements over the past five years. It also tackles “next step” topics like cloud computing, “claw-back” agreements and non-waiver orders.

What if — while reading this wonderful book review — your computer dings? You are deep into discovery in a massive commercial case and the client’s general counsel just sent you an email. “Jimbo (you went to law school together, so he can call you that), heard back from IT this morning and they found A LOT of stuff. Some guy named Liam said there’s almost a terabyte worth of info. Here’s hoping you know what that means. Talk soon, Mike.” One quick Google search later, you now know that a terabyte is equal to about 1,000 gigabytes. The new Dell you bought for your son only has 250 gigabytes of storage, so the thought of sorting through and producing 1,000 gigabytes of data has suddenly started you down the path toward an ulcer.

Instead of calling your doctor, I might suggest opening Taber’s book to chapter 13. He explains that “claw-back” and “quick peek” agreements came about based on situations similar to the one you are in now. Official comments to the 2006 federal and 2009 Tennessee e-discovery amendments, for example, define “claw-back” agreements as providing “that production without intent to waive privilege or protection should not be a waiver so long as the responding party identifies the documents mistakenly produced, and that the documents should be returned under those circumstances.”

When most of us think ESI, we usually then think CYA. While Taber’s book devotes many chapters to making sure Tennessee attorneys stay off the Board of Professional Responsibility’s radar, it also spends a great deal of time explaining how to use ESI as evidence. In chapter 15, the book carefully maps out frameworks for admitting ESI, from understanding Rule of Evidence 901 to recognizing chain of custody issues. The book not only helps you stay out of trouble; it also helps you win.

My son has watched a lot of Thomas the Tank Engine over the last few years, so I am intimately aware of the fact that Thomas and friends strive to be “useful” engines. More than anything else, I can say without pause that Taber has written quite a “useful” book. It is also written and structured in a way that makes the book easy to navigate and even easier to read.

If you are looking for a way to alleviate e-discovery anxiety, I might suggest adding Electronic Discovery in Tennessee to your Amazon shopping cart.

NOTE

  1. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (“Zubulake I”).

CHRIS W. MCCARTY is a lawyer with Lewis, King, Krieg & Waldrop PC in Knoxville. He can be reached at cmccarty@lewisking.com.