Academic journal article Rutgers Computer & Technology Law Journal

Electronically Stored Information and the New Jersey Court Rules

Academic journal article Rutgers Computer & Technology Law Journal

Electronically Stored Information and the New Jersey Court Rules

Article excerpt

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. …

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