Electronically Stored Information and the New Jersey Court Rules

By Gardner, Robert H.; Marck, David et al. | Rutgers Computer & Technology Law Journal, Spring 2013 | Go to article overview

Electronically Stored Information and the New Jersey Court Rules


Gardner, Robert H., Marck, David, Strauss, Steven, Rutgers Computer & Technology Law Journal


I.   INTRODUCTION
II.  BACKGROUND
        A.THE TEXAS MODEL FOR E-DISCOVERY
III. THE 2006 E-DISCOVERY AMENDMENTS TO THE FEDERAL
        RULES OF CIVIL PROCEDURE
        A. FEDERAL CASES
IV. ESI, SOCIAL NETWORKING, AND THE NEW JERSEY COURT
        RULES
        A. PARTICULAR DEMANDS OF ESI DISCOVERY
        B. THE NEW JERSEY COURT RULES AND ESI
        C. DUTY TO PRESERVE ESI
        D. ESI, SOCIAL NETWORKING, THE CLOUD, AND THE
           NEW JERSEY COURT RULES
           1. THE SCA
           2. SUBPOENAS, ESI, AND THE UIDDA
           3. NEW JERSEY
V. CONCLUSION

I. INTRODUCTION

Rules regarding electronic discovery are a large and growing concern for businesses, individuals, and litigators who inevitably will be called in to resolve civil disputes and provide justice in criminal matters. (1) Since the beginning of the computerized era, businesses and individuals have quickly transitioned from hardcopy storage and transmission of information to electronic documenting, yet the rules of practice governing the discovery stage of litigation have been relatively slow to adjust to the practical realities of electronically stored information (ESI). (2) United States jurisdictions have dealt with new businesses and personal practices in a variety of ways. (3) The resulting patchwork of regimes, consisting of largely backward rules, has made navigating the modern discovery landscape difficult for practitioners and the judiciary alike. (4)

ESI is defined as:

   any information created, stored, or best utilized with
   computer technology of any sort, including business
   applications, such as word processing, databases, and
   spreadsheets; Internet applications, such as email and the
   World Wide Web; devices attached to or peripheral to
   computers, such as printers, fax machines, pagers; web
   enabled portable devices and cell phones, and media used
   to store computer data, such as disks, tapes, removable
   drives, CDs, and the like. (5)

In general, practice rules regarding discovery of ESI follow the same general guidelines prescribed for physical evidence. (6) The basic goals of evidentiary guidelines are the same regardless of the format of the evidence. (7) There are, however, several major differences between ESI and hard-copy documents which pose challenges to traditional discovery processes. (8)

The first difference is one of volume. ESI, due to its relatively low storage costs as compared with physical records, leads to higher levels of retention and thus higher levels of document production. (9) For instance, many personal e-mail hosting sites automatically keep all correspondence unless otherwise instructed by the user; forty years ago, few individuals kept hard copies of all letters written and received; this informal analysis does not account for the increase in correspondence in the immediately-delivered and expense-free electronic realm, (10) To further illustrate the point, "large corporate computer networks create backup data measured in terabytes, or 1,000,000 megabytes: each terabyte represents the equivalent of 500 [m]illion typewritten pages of plain text." (11)

The second key difference between ESI and hard-copy documentation is a difference in permanence. (12) ESI is both more and less permanent than real paper. ESI is generally nonpermanent because "digital transactions ... often create no permanent document in electronic or other form. ... After a customer has printed out an e-ticket and moved to a different screen, the e-ticket 'disappears.'" (13) An additionally non-intuitive aspect of ESI is the manner in which the information contained in "deleted" data tends to remain on computer systems. (14) Such a case, "the computer has merely been told to ignore the 'deleted' information and ... the physical space that the data takes up on the hard drive is available for overwriting when the space is needed." (15) Essentially, no data is permanently erased until the computer system has overwritten it with new information.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Electronically Stored Information and the New Jersey Court Rules
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.