Electronic Discovery: Litigation Crashes into the Digital Age

By By Cameron G. Shilling

Computers are present in every aspect of our lives. Electronic data and digital storage devices are replacing paper and filing cabinets. Email is far more prevalent and often preferred to face-to-face meetings and telephone calls, and the Internet has reinvented the way we communicate, transact business and obtain information.

Society's addiction to continuous technological innovation has caused an explosion in the amount of electronic data created and a proliferation of electronic devices upon which data is stored. In the words of U.S. District Court Judge Shira Scheindlin, who authored a series of seminal decisions in this area, as “individuals and corporations increasingly do business electronically-using computers to create and store documents, make deals, and exchange e-mails-the universe of discoverable materials has expanded exponentially.”

While lawyers as a group have been slow to adopt technology for ourselves, we are not ignorant about the value of it in lawsuits. Now, the smoking gun is much more likely to be found in electronic data than on a piece of paper. It is not surprising, therefore, that litigation is crashing into the digital age in the form of “e-discovery.”

Electronic data is fair game for discovery. Over three decades ago, the Federal Rules of Civil Procedure were amended to clarify that “documents” discoverable under Rule 34 include electronic data. However, that change did not suffice to keep the law abreast of the profound changes in information technology that have occurred since then.

Discovery of electronic data raises markedly different issues from the discovery of documents, because there are fundamental differences between data and paper. For example, while it may be black letter law that data is discoverable, it is not at all clear how much discovery a litigant can obtain when the amount of potentially discoverable data is enormous, particularly data that is time consuming and costly to restore. As Judge Scheindlin aptly observed, the “more information there is to discover, the more expensive it is to discover all the relevant information until, in the end, discovery is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter.”

E-discovery also raises major issues involving the duty to preserve evidence for litigation and the sanctions imposed for spoliation of it. Because the amount of potentially discoverable data is often overwhelming and data is susceptible to unintentional and automatic destruction, spoliation is a frequent e-discovery problem, which can result in monetary sanctions commonly in the tens of thousands of dollars and case crippling negative evidentiary inferences.

E-discovery law has had to evolve rapidly just to catch up to and keep pace with the ever increasing speed of technological innovation. Pioneers in this area initially devised principles to guide the growth of the law, called The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (“Sedona”). A few decisions from wise federal court judges also have been very influential. Most importantly, the U.S. Supreme Court recently approved significant amendments to the Federal Rules of Civil Procedure to address e-discovery, which take effect December 1, 2006. E-discovery also is a topic of some state court rule amendments.

Coming up to speed on e-discovery is a daunting task for many lawyers. Those who succeed in doing so will realize that the framework for e-discovery makes sense, and they will have the ability to effectively litigate in the digital age. Those who do not will find themselves at significant disadvantages. This will happen because, while e-discovery not only has a “potential to increase discovery costs and delays, further burdening the litigation process,” it has an equal “potential to make discovery more efficient, less time-consuming, and less costly, if it is properly managed and effectively supervised.”

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Cameron G. Shilling is a partner at the McLane Law Firm. His expertise is in complex business litigation, particularly employment and intellectual property disputes.

He can be reached at cameron.shilling@mclane.com.