Discovery of Electronic Evidence

• Pages: 75-96

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CHAPTER VI

DISCOVERY OF ELECTRONIC EVIDENCE

Electronic evidence recently has emerged as a star witness in many

high-profile cases.1It is not hard to understand why. By some estimates

only thirty percent of corporate information is reduced to paper; the rest

resides electronically.2Advances in technology and increased

standardization mean that most data are transferable from machine to

machine with little effort.3Businesspeople routinely communicate

within their own organizations (and increasingly with third parties) by e-

mail. Because people tend to be more informal and frank in e-mails, and

to generate such messages more promptly and quickly, these

communications often contain uncensored thoughts, candid explanations

for actions, and other tidbits that appear nowhere on paper—until they

are printed out and marked as deposition or trial exhibits.

E-mail is just one aspect of such discovery. Businesses often rely

upon sophisticated database models, often consisting of customized and

proprietary software, to do their market analyses, economic evaluations,

and other strategic tasks. These models often can provide information

not available in paper form, such as the set of data relied upon by, or

available to, the company in making key decisions at particular times.

Similarly, drafts of correspondence and other potential “smoking guns”

often exist only in their electronic files, having been deleted from or

never kept in hard-copy files. In negotiation and litigation, knowing how

to seek (or respond to) electronic discovery can now make the difference

between a good result and a poor one.

This chapter addresses basic rules and strategies relating to

discovery of electronic evidence. First, it provides an overview of the

1.See, e.g., Steve Lohr, Antitrust Case Is Highlighting Role of E-mail,N.Y.

TIMES,Nov. 2, 1998, at C-1 (a large percentage of the 30 million

documents produced by Microsoft in its government antitrust case were

electronic, and the parties in that case jointly submitted o ver 3,000 trial

exhibits, most of them e-mails); see also Office of the Independent

Counsel Referral, Sept. 9, 1998, nn.479, 315, 687, 688, 707 (identifying

as key electronic evidence e-mails recovered from Monica Lewinsky’s

computer, computerized White House visitation logs, and voice mail

messages left on Ms. Lewinsky’s answeri ng machine).

2.See Susan J. Silvernail, Electronic Evidence: Discovery in the Computer

Age,58 ALA.L. REV.176, 177 (May 1997).

3.Almost everybody now has the ability to use and read others’ electr onic

information. Silvernail, supra note 2, at 177.

76 Antitrust Discovery Handbook

important types of electronic documents that can be sought in discovery

in commercial and antitrust cases. Second, it addresses briefly some key

issues at the cutting edge of electronic discovery. Third, it provides a

basic overview of the sometimes conflicting legal rules relating to

electronic discovery. Finally, it provides a series of practical strategies

for obtaining and defending against electronic discovery. Included in

chapter 8 are sample forms to adapt and use to obtain electronic

discovery.

A. Overview of Electronic Data in Commercial and Antitrust

Cases

Although many companies today perform virtually every important

corporate act electronically, in some fashion, and a trail of those acts

usually remains behind somewhere, parties often fail to engage in

electronic discovery during litigation. This scenario produces an

interesting by-product: parties do not necessarily follow prudent

electronic data retention and destruction procedures, leaving them

vulnerable to discovery or, alternatively, stiff sanctions and spoliation of

evidence claims.4This section describes key pieces of electronic

discovery in complex commercial and antitrust cases.

1.

E-mail

E-mails are often the best documents in a case.5They frequently

contain the unvarnished truth, reflecting the way people thought and

communicated at the time, without coaching from counsel, or without

thinking about the implications for the company (or anything else). As

e-mail users grow more sophisticated in the future, one can expect fewer

damaging documents to be created and thereafter featured in litigation.

Having experienced the use of their e-mail in litigation themselves, or

having read and seen enough examples of such use in other cases, people

will soon draft e-mail as they would any other written correspondence in

the precomputer age. Until then, e-mail is a comparative goldmine, as

4.In California, at least, tort remedies for spoliation of evidence have been

recently disfavored. Cedars-Sinai Medical Center v. Superior Court, 18

Cal. 4th 1 (1998) (tort remedy will not lie for first party spoliation but

sanctions will).

5.See Charles A. Lovell and Ro ger W. Holmes, The Dangers of E-Mail:

The Need for Electronic Data Retention Policies,44 R.I.B.J., Dec. 1995,

at 7−8for a discussion of particularly damaging examples of e-mail

discovery.