Academic journal article
By Allman, Thomas Y.
Defense Counsel Journal , Vol. 68, No. 2
There are vast differences between discovery of hard-copy documents and those stored electronically, and the difference should be recognized
THE USE of electronic methods to create, transmit and store information has changed dramatically the way in which document retrieval and production in discovery should be viewed. Last October, the U.S. Judicial Conference's Federal Civil Rules Advisory Committee, through its Discovery Subcommittee, met to hear testimony for and against the proposition that the current problems with electronic discovery warrant changes in the Federal Rules of Civil Procedure.(1) Although a few of the testifying witnesses supported change, several representatives of bar groups and the judiciary did not see any need for immediate action. But there is an urgent need to treat the discovery of electronic records differently from traditional documents, and amendments to the Federal Rules are necessary to help impose order in an area of the law that is both unpredictable and increasingly subject to abuse.
ELECTRONIC RECORDS ARE DIFFERENT
The subcommittee has asked for comments on whether the use of electronic records represents a mere evolution in the discovery regime or whether it has fundamentally changed the landscape of discovery such that amendments to the rules are warranted. Two major differences create a need for the subcommittee to act and propose a different set of discovery rules.
First, the sheer volume of information available in the electronic context is materially different. Take, for example, the matter of routine inter-office communications. The use of electronic mail has increased geometrically the number of places where "copies" of those types of documents may be located. Instead of merely residing in filing cabinets filled with hard copies, electronic documents may exist both in systems designed to retain and manage such records, as well as in systems not intended for that purpose.
"Copies" of electronic records may be heroically retrieved from locations not ordinarily available to the persons engaged in such communications. For instance, part or all of "deleted" documents may be reconstructed from the hard drives of originating personal computers or from network servers relating to the computers. Such documents or document fragments also may be reconstructed from the personal computers or servers of recipients. Additionally, copies might be retrieved from "back-up" tapes that are created daily, weekly or monthly for disaster recovery purposes. The costs, including the burden and inconvenience to the ordinary operation of a business enterprise, could be enormous if all possible locations must be searched. If multiple litigation occurs in overlapping time frames, the costs would increase geometrically. These and other practical problems are not readily apparent to some courts, which have failed to perceive that different burdens exist with respect to electronic records.(2)
A second major difference is the entirely new class of "embedded" information that may be available in the electronic discovery world. Obtaining this information, which may include such data as editing histories or creation and access dates, usually requires the application of forensic technologies and can increase discovery costs substantially. It is yet to be seen whether this type of electronic information is within the scope of discovery, and it may be necessary to clarify definitions in the rules relevant to this information.(3)
In short, whether acknowledged or not, the retrieval of electronic information for purposes of discovery is different in kind and burden from the efforts associated with hard-copy discovery.
FAILURE TO DIFFERENTIATE
To protect against discovery abuse, Rule 26(c) allows issuance of "protective" orders, and courts are directed by Rule 26(b)(2) to balance the likely benefit against the burden or expense to the producing party on a case-by-case basis. …