Academic journal article Journal of Corporation Law

E-Discovery Rules and the Plain View Doctrine: The Scylla and Charybdis of Electronic Document Retention

Academic journal article Journal of Corporation Law

E-Discovery Rules and the Plain View Doctrine: The Scylla and Charybdis of Electronic Document Retention

Article excerpt

I. INTRODUCTION

Computers have fundamentally changed the way we store information. The laptop computer that produced this Note houses more than 1000 photos, more than 3000 songs, a few dozen videos, as well as several other programs that would not make much sense without a computer as a reference. All of this fits on a hard drive not much larger than two decks of cards laid down side to side. This economy of physical space has been a boon to businesses. Where a company once needed a file room lined with filing cabinets and filled with paper documents, it can now purchase a single server and store it in a closet and maintain many times the amount of information.

There have, however, been complications with how the law has adapted in some areas to meet the new standards in information storage. Electronic information storage makes discovery-the process by which parties solicit information from one another during litigation-significantly more complex. Additionally, search and seizure law under the Fourth Amendment has faced problems in adapting to the technological advances, specifically how the plain view doctrine relates to electronically stored information.

Part II of this Note examines the law's adaptation to the advances in information storage in both electronic discovery and the plain view doctrine. Part III discusses how these two areas of the law conflict with each other and complicate the efforts of a business wishing to maintain an electronic document retention system. Part IV recommends that courts move toward uniformity in the application of the rules of e-discovery. Additionally, Part IV recommends that courts allow magistrate judges to limit searches of electronically stored information with ex ante restrictions and adopt a new approach for analyzing information that law enforcement views outside the scope of a warrant. Finally, Part IV prescribes measures that businesses can take to walk the line between e-discovery law and the plain view doctrine.

II. BACKGROUND

Both electronic discovery and the plain view doctrine-as it applies to electronically stored information-are relatively young areas of law. As with any young area of law, there is obviously less jurisprudence focusing on the area than with more developed topics. There is not a complete void in the law however. Both areas grow out of older and more established legal norms: physical (non-electronic) discovery and the plain view doctrine as it applies to physical searches. This history informs the current law on each topic.

A. Discovery Generally

Discovery is the process that litigants use to obtain information from opposing parties.1 How the course of discovery proceeds is largely up to the opposing parties.2 A court will only involve itself when there is a dispute about whether a party has complied with the rules of discovery or if it decides that the proceedings require a change in the parties' discovery plan.3 There are five processes for eliciting information during discovery: depositions, interrogatories, requests for production and inspection, physical and mental examinations, and requests for admissions.4

1. Electronic Discovery

Generally, electronic discovery-or "e-discovery"-refers to a request for production and inspection,5 though a party may use electronically stored information (ESI) to answer interrogatories.6 The theoretical approach to e-discovery is very similar to the approach that a party must go through in response to a request to produce a physical document.7 One party requests a certain document and the other party must identify that document, separate it from other documents that the requesting party did not ask for, and produce it for the requesting party in a format that they can understand.8 In the case of ESI, the word "document" can just as easily refer to a photo, spreadsheet, audio file, or some other digital file as it can a traditional text document.9

While the theory behind the discovery procedure is very much the same for physical document discovery as it is for e-discovery, a number of factors make the actual e-discovery process much more complex. …

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