Article Title: Electronic Discovery: New Power, New Risks

• Jurisdiction: Utah,United States
• Citation: Vol. 2003 No. 11 Pg. 11-2
• Pages: 11-2
• Publication year: 2003

Utah Bar Journal Volume 11.

11-2 (2003). Article Title: Electronic Discovery: New Power, New Risks

November, 2003

Last Update: 15/11/04

Article Title: Electronic Discovery: New Power, New Risks

Author: David K. Isom

Article Type

Articles

Article

It is now clear that electronic information is so pervasive and important in civil litigation in the United States that every civil litigator in Utah must know how to pursue and provide electronic discovery, and every individual and company likely to bring or defend a civil lawsuit must understand the decisive impact of electronic discovery

This article is a primer for lawyers and their clients, both individuals and companies, who are or may become involved in a civil lawsuit as plaintiff or defendant

The first section defines electronic discovery and outlines possible repositories of electronic evidence.

The second section explores the characteristics of electronic evidence that make electronic discovery fundamentally different than paper discovery.

The third section explains why electronic discovery is so important.

The last section makes suggestions both for seeking electronic discovery and for preserving and producing electronic information.

I.Electronic Discovery Primer:

What Electronic Discovery Is

"Electronic discovery" has become the common label for the formal process in civil lawsuits of the discovery of factual information that, at any time, has been created, retained, stored, processed, converted, reviewed, produced or presented in electronic form by computers or other electronic media.

The phrase is common, however, only among those who have already been involved in electronic document disputes. Recent discussions with lawyers, paralegals and law firm administrators who have not been involved in electronic discovery revealed a number of other reactions as to what the phrase "electronic discovery" might mean, including: using Lexis or Westlaw for computerized legal research; using any of the various available computer processes or software to convert paper documents to digital data for management in litigation; realizing that digital data are discoverable "documents" within the meaning of Rule 34 of the Federal and Utah Rules of Civil Procedure.

"Electronic discovery" customarily refers to the formal process of requesting or producing electronic information under Rules 26, 34 and 45 of the Federal Rules of Civil Procedure and similar Utah rules. These issues should be distinguished from two related sets of issues that are beginning to receive more deserved attention.

One set is the issues created by lawyers' use of their own computers in producing legal work.(fn1) The other set of issues arises from the use of electronic media to do "informal" discovery - i.e., investigative, unilateral, creative electronic fact research. The ascendance of the World Wide Web, and the development of gargantuan databases and sophisticated search engines, has made informal, unilateral electronic research as important as the formal electronic discovery discussed here.

The current range of lawyer attitudes about electronic discovery is remarkable. For some lawyers who have not been involved in electronic discovery, it still comes as a surprise that electronic data are even discoverable "documents."(fn2)

There is a middle group of lawyers that is slowly, sometimes painfully, learning about electronic discovery. For example, in Jones v. Goord,(fn3) the plaintiffs' lawyers requested a category of documents that, in retrospect, could have been interpreted to have included electronic documents. The requesting lawyers apparently did not think to press production of the electronic documents until six years into the litigation, however, even though those lawyers had known for years that the defendants had responsive electronic documents. After the defendants had produced the requested paper documents, plaintiffs belatedly moved to compel production of what they contended were "essential" electronic documents, arguing that the electronic documents would be easier and cheaper to handle and would allow statistical analysis critical to the plaintiffs' claims. The court denied the motion and prevented electronic discovery, largely because enormous expense had already been incurred in producing the paper documents, and because the plaintiffs were simply too late in realizing that electronic discovery might be valuable. In short, the plaintiffs could not get the electronic information that they deemed essential, and that the court acknowledged was relevant, because the lawyers waited too long to press for the information.

The third group of lawyers is those already introduced to electronic discovery issues. They are left to muse at the breadth of their duties to produce their own clients' documents, to celebrate the power of electronic discovery in uncovering their adversaries' secrets and vulnerabilities, and to scramble to keep up with the dizzying pace of technological change in electronic discovery.

Electronic discovery was recognized in the rules of civil procedure beginning in 1970.(fn4) Courts began tussling with issues unique to electronic discovery in the early 1970s.(fn5) Judge Thomas Greene's opinion in 1985 in Bills v. Kennecott Corporation(fn6) became the most-cited electronic discovery case of the 1980s, and was prophetic:

This court need not dwell on the benefits computers provide over traditional forms of record keeping. The revolution over the last fifteen years speaks for itself...