Electronic Discovery

Electronic Discovery or e-discovery refers to discovery information that is stored in electronic devices.  Unlike information on paper, electronic information is generally voluminous, intangible, transient and persistent.  Some examples of e-discovery data include: e-mails, instant text messaging, instant messaging chats, MS office document files, accounting database, CAD/CAM files, and websites.

In December 1, 2006, Federal Rules of Civil Procedure relating to discovery was amended to update the e-discovery process.  Some of the major amendments regarding e-discovery are discussed below.

According to the amendment, when a pretrial meeting is scheduled, the scheduling order should include provisions on disclosure or discovery of electronically stored information.  Also, when parties plan pretrial meeting, they are required to discuss all issues relating to discovery and disclosure of electronically stored information.  The issues may relate to producing and preserving the electronically stored information, and on the form of producing the information.

Discovery Request:  Under amended Rule 26(b), a party is not required to produce electronic information if it is not reasonably accessible.  Reasonable accessibility is determined by the court on a case by case basis.  Under amended Rule 33, interrogatories involving review of business records includes a search of electronically stored information.  Amended Rule 34 differentiates electronic and not electronic information in detail for the purpose of production of documents during discovery.

Form of Production: Amended Rule 34(b) permits the requesting party to specify a form of producing the electronically stored information.  The responding party is permitted to object to the form of production if necessary.  If there is a dispute about the form of producing the electronically stored information, the court will order the form of production.  In the absence of a court determined form of production, the parties can either produce the information in a form it is generally maintained, or in a form where the information is available through electronic search.

Sanctions: Amendment added Rule 37(f).  Accordingly, sanctions are not imposed on a person who failed to produce electronic information because it was lost in the day to day operation of the computer system.  However courts will defer from sanctioning a party, only if it is found that the party took reasonable steps to prevent the information loss after knowing that the information was discoverable.

The wide scope of e-discovery has necessitated attorneys to be technology savvy.


Inside Electronic Discovery