In litigation, the issue du jour is the discovery of electronically stored information (“ESI”). There are a whole host of issues, such as the particular form in which the ESI should be produced (pdf? native format?), whether data claimed to have been deleted can be restored, and whether the producing party has control of the production or whether the requesting party can send in its own technological team to copy the data. These are just a few of the ESI related issues that are generating much discussion – between parties and their counsel, among the Judiciary, and among the bar.
Discovery of ESI is impacted by how soon parties are notified of their obligation to preserve data and by how well they honor that obligation. In response to a request for the production of documents, counsel conducts targeted searches of emails to determine what must be produced to opposing counsel. The issue has seen a proliferation of companies offering ESI discovery services. Often, there are accusations between counsel that ESI was not adequately preserved, searched, and/or turned over. In some cases, there may be assertions that opposing counsel failed to conduct an adequately targeted search and is simply providing “everything” in the hopes that the needle will never be found in the electronic haystack. Counsel fight it out as best they can and then bring the dispute to the judge to settle. ESI disputes alone can become a case within the case.
The situation in research misconduct cases is very different. There are no discovery disputes over ESI. When scientific misconduct allegations are made against a scientist, the institution, at least where the research was supported by federal funds, not only has the right, it has the obligation, to sequester all of the scientist’s relevant data – both physical (lab notebooks, slides, specimens) and electronic data. The sequestration typically takes place before the institution notifies the scientist of the allegations. Institutions are authorized to take and preserve all the hard-drives in the laboratory – those belonging to the accused as well as, in some cases, those belonging to his/her colleagues involved in the research. For instance, under the regulations (42 C.F.R. §93.305) governing misconduct proceedings involving research funded by the Department of Health and Human Services the institution must:
(a) Either before or when the institution notifies the respondent of the allegation, inquiry or investigation, promptly take all reasonable and practical steps to obtain custody of all the research records and evidence needed to conduct the research misconduct proceeding, inventory the records and evidence, and sequester them in a secure manner, except that where the research records or evidence encompass scientific instruments shared by a number of users, custody may be limited to copies of the data or evidence on such instruments, so long as those copies are substantially equivalent to the evidentiary value of the instruments;
(b) Where appropriate, give the respondent copies of, or reasonable, supervised access to the research records;
(c) Undertake all reasonable and practical efforts to take custody of additional research records or evidence that is discovered during the course of a research misconduct proceeding, except that where the research records or evidence encompass scientific instruments shared by a number of users, custody may be limited to copies of the data or evidence on such instruments, so long as those copies are substantially equivalent to the evidentiary value of the instruments; and
(d) Maintain the research records and evidence as required by §93.317.
Thus, unlike a litigant, a scientist in a research misconduct proceeding does not have the opportunity to determine what should or should not be produced. Depending on the situation, it is possible that material may remain sequestered during the entire pendency of the investigation, which could mean many months, if not a year or more, during which a scientist might have only limited and supervised access to the research materials. The scientists should be allowed copies of the materials sequestered; however, this process does impact the scientist’s normal free flow of data. There are no lawyers arguing about the scope of discovery; no access to a judge to settle discovery disputes. The institution is solely responsible for gathering and safeguarding the evidence. It is unlikely that a comparable system (a court-appointed ESI team perhaps) would ever be implemented for litigation. Years ago most courts put an end to the filing of discovery requests and responses. It is unlikely that the courts would want to have anywhere near the level of involvement in the discovery process as institutions are required to have in research misconduct investigations.
Paul S. Thaler is the Managing Partner in the Firm’s Washington, D.C. office, co-chair of the Internal Investigations Group, and a member of the ADR and Commercial Litigation Groups.
Karen S. Karas is Senior Counsel in the Firm’s Washington, D.C. Office and is a member of the Commercial Litigation and Internal Investigation Groups.