Law review highlights: electronic discovery.

• Author: Youngdale, Elizabeth M.

Electronic information presents unique discovery challenges. The sheer volume of material available electronically--on computer hard-drives, back-up tapes, and servers--has driven up the cost of discovery when parties request electronic documentation. Historically, the Federal Rules of Civil Procedure ("Federal Rules") have not adequately dealt with many of the legal issues raised by e-discovery. New proposed amendments to the rules recognize these differences between paper and electronic discovery and attempt to address these problems.

In her comment, Adjudicating Beyond the Scope of Ordinary Business: Why the Inaccessibility Test in Zubulake Unduly Stifles Cost-Shifting During Electronic Discovery, (1) Jessica Lynn Repa, considers the interpretation of the Federal Rules applied to electronic discovery in Zubulake v. UBS Warburg LLC. (2) The comment first examines the background and history of electronic discovery in the federal courts. It then considers the undue burden test, as articulated in Roe Entertainment, Inc. v. The William Morris Agency, (3) and compares it to the inaccessibility requirement outlined in Zubulake. The undue burden test permits cost-shifting during electronic discovery after weighing the heavy burden it placed on the producing party to retrieve electronic files against any of the receiving party's benefits of obtaining the accrued electronic data. The inaccessibility test on the other hand limits cost-shifting during electronic discovery where data is relatively inaccessible. Finally, Ms. Repa's comment looks at the application of the Zubulake limitation and how this restriction affects discovery in the course of litigation.

Sarah A.L. Phillips' comment, entitled Discoverability of Electronic Data Under the Proposed Amendments to the Federal Rules of Civil Procedure: How Effective Are Proposed Protections for "Not Reasonably Accessible" Data? (4) approaches the issue of electronic discovery from the perspective of the proposed amendments to the Federal Rules. In August 2004, the Civil Rules Advisory Committee proposed several amendments to the Federal Rules, specifically to address the need to accommodate new forms of information technology that make discovery more burdensome and costly. The new language places limits on discovery of electronic information that is "not reasonably accessible," but allows judges to order discovery upon a showing of "good cause." Ms. Phillips does not believe that the amended language provides enough protection. She proposes strengthening the new language by providing a stricter analysis of what constitutes "good cause."

A third article takes a broader look at the proposed amendments to the Federal Rules and the effect they might have on electronic discovery. Henry S. Noyes discusses whether electronic information is sufficiently different from hard copy information to warrant separate consideration under the Rules of Civil Procedure in his article entitled Is E-Discovery So Different That It Requires New Discovery Rules? An Analysis of Proposed Amendments to the Federal Rules of Civil Procedure. (5) Mr. Noyes provides background on the Advisory Committee's investigation into electronic discovery and scrutinizes the current language of the Federal Rules and its effectiveness in addressing these differences. Ultimately, he concludes that the proposed amendments are inadequate to address the differences between electronic and traditional discovery.

U.S. and International

Damages

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David W. Barnes & Deborah Zalesne, A Unifying Theory of Contract Damage Rules, 55 SYRACUSE L. REV. 495 (2005).

Garrett T. Charon, Note, Beyond a Bar of Double-Digit Ratios: State Farm v. Campbell's Impact on Punitive Damages Awards, 70 BROOK. L. REV. 605 (2005).

Ruth Dyson, The Future of Accident Compensation: New Directions and Visions, 35 VICT. U. WELLINGTON L. REV. 775 (2004).

Brian Easton, Ending Fault in Accident Compensation: Issues and Lessons from Medical Misadventure, 35 VICT. U. WELLINGTON L. REV. 821 (2004).

Jim Gash, Punitive Damages, Other Acts Evidence, and the Constitution, 2004 UTAH L. REV. 1191.

Richard Gaskins, New Dynamics of Risk and Responsibility: Expanding the Vision for Accident Compensation, 35 VICT. U. WELLINGTON L. REV. 951 (2004).

Bronwyn Howell, Medical Misadventure and Accident Compensation in New Zealand: An Incentives-Based Analysis, 35 VICT. U. WELLINGTON L. REV. 857 (2004).

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