What Is Relevant Data?

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?

Why is relevant data important?

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.

Addressing relevance

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:

• Formation of a contract between plaintiff and defendant;
• Performance by plaintiff;
• Failure to perform by defendant; and
• Resulting damages to plaintiff.

Relevant materials could include:

• Formation: Drafts and signed versions of the contract pursuant to which defendant was to design, manufacture and deliver to plaintiff custom kitchen cabinets for a housing development, and pursuant to which plaintiff was to provide defendant with specifications for the cabinets, pay for the cabinets pursuant to a schedule, and report any problems with the cabinets within a specified timeframe.
• Plaintiff's performance: Copies of the cabinet specifications along with communications discussing development of the specifications.
• Defendant's failure to perform: Examples of cabinets that did not meet the final specifications, communications indicating defendant's awareness that the cabinets did not meet specifications, communications indicated defendant's attempts to conceal information about the defects from plaintiff, photos of problematic cabinets.
• Damages: Documents showing costs incurred by plaintiff to repair or replace cabinets, communications showing negative impact on plaintiff's reputation as a result of owners' problems with their cabinets, communications indicating the frustration and anger of people who purchased units containing deficient cabinets.

Forms and Types of Data

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:

1. Information stored in people's heads. Attorneys, their staff, and others working on their behalf get this information by interviewing people, taking statements from people, deposing people, or having people testify at hearings, trials, or similar situations.
2. Information stored in tangible objects. You might have a matter where a motorcycle allegedly had a defective braking mechanism, or one where a football helmet allegedly lacked adequate impact protection. For that, you would want to be able to examine the actual object involved and likely others both similar and different.
3. Information stored in paper. Think of this as discovery old school style - looking at anything on paper or similar analog storage like microfilm, photographs, and the like. Rifling file cabinets. Flipping through grime-covered boxes of retained records. Reading through everything from annual reports to medical records.
4. Electronically stored information. This is all the stuff we deal with in eDiscovery, such as email messages and other forms of electronic communications, office files like Word, Excel, or PowerPoint, databases, and so on.

When it comes to ESI, virtually any type of data stored electronically could contain relevant content. A few examples include:

• Communications. Email messages, IMs, Slack and other chat messages. Zoom and Teams recordings. Pretty any form of communication that has been committed to an electronic form and that is accessible can be subject to discovery.
• Personal data. Just because it is personal does not make it irrelevant. If a plaintiff who claims to have sustained lower back soft tissue injuries and as a result is unable to lift weights greater than 25 pounds, send his college buddies pics of him winning a weight-lifting competition, that content is relevant, never mind that it is personal.
• Social media content. Social media posts, likes, and other data about actions taken on social media, as well as data about social media such as SEO (search engine optimization) data.
• Office files such as Word, Excel, and PowerPoint.
• Video and audio recordings.
• Photographs and other pictures.

Your Own Client's Data

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.

Other People's Data

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.

Getting Relevant Data

Let's break down Rule 26(b)(1) and step through what it means in practice.

"Parties may obtain discovery..."

"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:

• Disclosures: They are entitled to receive certain information, including some ESI, as part of an initial disclosure (FRCP 26(a)(1)); ESI considered by expert witnesses in forming their opinions (FRCP 26(a)(2)); and as part of pretrial disclosures, information about ESI that the party may present at trial other than solely for impeachment (FRCP 26(a)(3)).
• Depositions: Attorneys may depose people by oral examination (FRCP 30). Attorneys also can depose people, including parties, by written questions (FRCP 31).
• Interrogatories: Attorneys may serve interrogatories (written questions) on other parties (FRCP 33). A party is initially limited to no more than 25 written interrogatories, including discrete subparts; stipulate or court order is required to go beyond that limit. The scope for interrogatories is the same as the scope under Rule 26(b).
• Document requests: Attorneys may request that parties produce documents, ESI, and designated tangible things to them (FRCP 34). Again, the scope is the same as under Rule 26(b).
• Physical and mental examinations: Under certain circumstances, courts may order a party to submit to a physical or mental examination (FRCP 35).
• Requests for admission: Lawyers may serve on other parties written requests to admit the truth of any matters within the scope of Rule 26(b)(1), only for purposes of the pending action (FRCP 36). The requests must relate to (A) facts, the application of law to facts, or opinions about either, as well as (B) the genuineness of any described documents.

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:

1. The needs of the case;
2. The importance of the issues at stake in the action;
3. The parties' resources;
4. The importance of the discovery in resolving the issues; and
5. Whether the burden or expense of the proposed discovery outweighs its likely benefit.

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.

Mechanisms for Obtaining Relevant Data

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:

• Disclosures: They are entitled to receive certain information, including some ESI, as part of an initial disclosure (FRCP 26(a)(1)); ESI considered by expert witnesses in forming their opinions (FRCP 26(a)(2)); and as part of pretrial disclosures, information about ESI that the party may present at trial other than solely for impeachment (FRCP 26(a)(3)).
• Depositions: Attorneys may depose people by oral examination (FRCP 30). Attorneys also can depose people, including parties, by written questions (FRCP 31).
• Interrogatories: Attorneys may serve interrogatories (written questions) on other parties (FRCP 33). A party is initially limited to no more than 25 written interrogatories, including discrete subparts; stipulate or court order is required to go beyond that limit. The scope for interrogatories is the same as the scope under Rule 26(b).
• Document requests: Attorneys may request that parties produce documents, ESI, and designated tangible things to them (FRCP 34). Again, the scope is the same as under Rule 26(b).
• Physical and mental examinations: Under certain circumstances, courts may order a party to submit to a physical or mental examination (FRCP 35).
• Requests for admission: Lawyers may serve on other parties written requests to admit the truth of any matters within the scope of Rule 26(b)(1), only for purposes of the pending action (FRCP 36). The requests must relate to (A) facts, the application of law to facts, or opinions about either, as well as (B) the genuineness of any described documents.

Regardless of mechanism pursued, however, you continue to be constrained by relevance.

Ready to Find Relevant Data?

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.