Electronic Discovery: 2006 Amendments to the Federal Rules of Civil Procedure

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I. INTRODUCTION

On December 1, 2006, the "E-discovery Amendments" (Amendments) to the Federal Rules of Civil Procedure (FRCP) went into effect. (1) The Amendments were approved to address a myriad of issues associated with electronic discovery (e-discovery) by attempting to (1) define discoverable electronic information, (2) control the costs associated with the discovery and production of electronic information, and (3) protect privileged or otherwise protected information. However, a year after the Amendments went into effect, lawyers are still puzzled by the intricacies of e-discovery, and the cost of production is still rising. The Amendments have instead created confusion and, to some extent, created fears reminiscent of "Y2K" (2) which is in part responsible for the rise in e-discovery costs.

This note will look at the reasons why the Amendments fall short of creating uniform and efficient standards governing e-discovery and will suggest practical solutions lawyers can implement to make navigating e-discovery easier. Section II will focus on the impact e-discovery has had on the litigation process and the courts' attempt to deal with issues related to electronic information, leading to the Amendments' approval. Section III will examine the Amendments. Section IV will discuss ways practitioners can prepare themselves for e-discovery through practical solutions.

II. IMPACT OF DIGITAL INFORMATION ON THE DISCOVERY PROCESS

In the past, the majority of business records, communications and other documents created by a company during the course of business were in paper format. (3) When litigation occurred, attorneys simply looked through the paper documents to find relevant documents. Today, the proliferation of computers in the corporate workplace and the dependency of email as a tool of communication and transactions have led to an explosion of electronic information being generated, stored, sent and received during the course of a normal work day. (4) Information and data traditionally created and stored in paper format is now routinely created and stored in electronic format. (5) Additionally, the decreasing prices in data storage systems (6) have led to companies storing vast amounts of electronic data on their live networks, desktop and laptop computers, and archives. The distinct characteristics of electronic data (a product of the way it is created, stored, transmitted and disposed of) have created discovery problems not seen during the course of a paper discovery.

A. Volume

The most significant characteristic is the sheer volume of potentially discoverable electronic information. In the past, the lack of technology limited the amount of paper documents produced. Today, computers make it relatively easy to create an electronic document. As a result, the majority of a corporation's work product and communications are created and stored in electronic format. (7) For example, a company of 100,000 employees may store an average of 1.5 billion emails annually. (8)

Unlike the static nature of paper, electronic documents are dynamic and computer programs can create new data and multiple copies during routine computer operations (9) without a user's knowledge. While a paper document can physically be moved from one filing cabinet to another without creating a copy, moving an electronic document from one location to another creates multiple copies and new documents. For example, sending a document via email requires that: (1) the sender's computer make a copy of the document which will reside on the email program's directory, (2) the email and document "pass" through a corporate network or internet service provider (ISP), creating a copy on the network, and (3) the recipient's computer make a local copy of the email and document for viewing. (10) A minimum of three additional copies are made in the course of an email transmission. Moreover, as a user works on an electronic document, multiple copies and revisions of the document are automatically saved in temporary folders to prevent the lost of data. …