The Paper Trail Has Gone Digital: Discovery in the Age of Electronic Information
| Publication year | 2002 |
| Pages | 16-25 |
| Citation | Vol. 71 No. 3 Pg. 16-25 |
71 J. Kan. Bar Assn. 3, 16-25 (2002). The Paper Trail has Gone Digital: Discovery in the Age of Electronic Information
71 J. Kan. Bar Ass'n, March. 2002, 16-25 (2002)
"You can't always get what you want, but if you try, sometimes, you might find, you get what you need."[1]
I. Introduction
There was a time when the search for justice meant following the "paper trail" to find the crucial piece of evidence. In recent years, however, information has gone digital. There has been exponential growth in the generation of information in electronic formats, much of which never makes it to the printed page. Thus, lawyers seeking answers for their clients can no longer address their discovery efforts primarily at traditional paper documents. Today's litigation attorney must develop at least a basic understanding of how electronic information is generated, transmitted and stored to be able to know when, where and how to find that information.
This article is intended to provide a brief summary of the types and the many sources of electronic information; to illustrate how the discovery process[2] has been and is being impacted by the pervasiveness of such information; and to provide a synopsis of the developing case law on key issues in the area of the discovery of electronic information. The article first provides a general overview (with only a modicum of "tech talk") of the myriad sources and types of electronic information. It then notes the primary questions that arise when seeking[3] to obtain electronic information through the discovery process. Next, the article summarizes the issues that tend to lead to disputes over efforts to obtain electronic information, and reviews the manner in which the courts have applied existing rules to deal with those disputes.
II. Sources and types of electronic information
Defining several terms related to electronic information is necessary before analyzing discovery issues relating to the information. The following list of terms is by no means exhaustive of those that come into play, but it does include a number of the basic terms that an attorney will deal with in the discovery of electronic information. The order of the terms in the list is alphabetical, and has no bearing on the relative significance of the terms.
Active Data - These are the currently-in-use data files. They may be stored on any computing device, not just the hard disks of a network server.
Backup Data - Information copied to removable media (tapes, ZipT drives, CD-ROM, etc.) to be used to reestablish the system in the event of a failure. Normally the data is stored in a compressed form that must be "restored" before it is usable.
Bookmarks - More accurately called network addresses, these are shortcuts that mark a location on a network to which the computer can quickly return "at the push of a button." The marker is typically created automatically upon the request of the computer user and stored on the user's computer.
Cache Files - These files record Internet addresses visited by the user and graphic elements of the Web pages visited. These files are created and stored automatically by the user's computer, and provide detailed trail markers identifying the path the user has traveled on the "Information Superhighway."
Cookies - These files contain bits of information about the user and/or the use of the computer, such as the user ID, details the user may have filled out on a form, past purchases and other personal data. The files are placed on the hard drive by the Web site operators. Cookie "crumbs" are sent back to the Web site every time the computer returns there, so the Web site can track the user's patterns and preferences.
Embedded data - This is information contained within an electronic version of a document that is not usually apparent on screen or in the printed "hard copy." Examples of the information revealed by these "byte-marks" are the date the document was created, the identity of the author, the identity of subsequent editors, the distribution route for the document, and even the history of editorial changes (for example, pieces of the drafts leading up to the latest version of the document may be invisibly and automatically saved by the computer and hidden in the files). This information is also called "metadata."
Legacy Data - Older information stored in an electronic format that can no longer be read using current software or hardware.
Replicant Data - These files are automatically created as part of a redundant system designed to eliminate system failures (or down-time).
Residual Data - This information includes the entirety or remnants of deleted files to which the file reference has been removed from the directory listings,[4] making the information invisible to most application programs.
The sources of electronic information include much more than the hard drives and floppy disks used with desktop computers. Networked devices leave information on local servers, redundant servers and servers on other continents. There are now many portable items, such as laptop and notebook computers, PDAs,[5] wireless phones, pagers and digital cameras. Some video-conferencing equipment makes digital records of each conference (both audio and video), and many voicemail systems keep archive copies of both incoming and outgoing messages. Videoconferencing and voicemail systems can also preserve data about who participated in an exchange, and the date, time and length of the exchange. For many years airplanes have stored data in cockpit voice recorders (CVR) and digital flight data recorders (DFDR), but today even family cars have "black boxes" filled with potentially vital information.[6] Even those old bastions of the printed page, the laser printer, the fax machine and the photocopier, create data files for spooling or delayed sending or audit trails. Coupled with the ever-increasing array of storage media, such as ZipT disks and the miniaturized Memory SticksT and Flash CardsT, the result is a proliferation of information that is being deposited "virtually everywhere."
As the means of recording and storing data increase, the result is a corresponding increase in the amount of information available, and in the number of places where the conscientious attorney must look to discover electronic information. The sources are rapidly verging on becoming overwhelming, both quantitatively and qualitatively. Developing a familiarity with electronic information is no longer an optional specialty for the litigation attorney - it is a fundamental requirement for effective participation in the discovery process.
III. Common questions that arise from the discovery of electronic information
Many of the important issues related to the discovery of electronic information arise from questions that are not as unique or new as some would suggest. The primary list includes:
1. What is the proper scope of the production and how can requests be drafted to narrow the search without inadvertently missing crucial information?
2. What can be done to prevent spoliation of evidence?
3. In what format will the information be produced?
4. Who will bear the cost of the production?
5. What is the proper balance between the privacy of the respondent and right to know of the requesting party?
6. Is expert assistance needed, either in determining what information to seek, or in deciphering the information received?
Thus, the issues involved with electronic information are similar to, though certainly not identical to, the issues involved when requesting paper documents. Nevertheless, it is imperative that attorneys in pursuit of electronic information have an understanding of where to look, and how to look, for the information. It is particularly important that discovery strategies be developed early in a case.[7] If not, crucial evidence may be overlooked or even destroyed, either intentionally or as part of the normal operations of a party's business. It is also important to determine early on whether the opposing party intends to use computer-generated evidence at trial.[8] By starting early there will be sufficient time to deal with disputes that arise and the potentially time-consuming means for resolving the disputes, as well as adequate time to investigate the foundational requirements of any computer generated evidence.
IV. The key points to ponder when seeking electronic information
A. The proper scope of a request: Don't byte off more than you can chew
Preparing a discovery request for electronic information is a delicate balancing act. If the request is too specific, certain critical information may not be provided and the attorney may telegraph to opposing counsel a theory of the case that would preferably be kept under wraps. However, if the request is too broad, the producing party may have a valid basis for objecting to the request, or may drown the requesting party in gigabytes of irrelevant information from which it is difficult to sift the important pieces. Or, the requesting party may incur the wrath of the court.[9] Thus, a crucial initial consideration is determining the proper scope of the inquiry.
In doing so, it is important to have an understanding of the producing party's electronic information systems and how people interact with the system. Determine what portable electronic devices exist, and how they are used. Often, information found on the more personal devices is more illuminating than material stored in network files.[10] It may also be that the only remaining record of a particular piece of...
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