SC Lawyer, May 2004, #1. Electronic discovery - developing solutions to new and complex challenges.

AuthorBy J. Mark Jones and John D. Martin

South Carolina Lawyer


SC Lawyer, May 2004, #1.

Electronic discovery - developing solutions to new and complex challenges

South Carolina LawyerMay 2004Electronic discovery - developing solutions to new and complex challengesBy J. Mark Jones and John D. MartinThe special challenges of electronic records discovery, including the exponential growth of electronic data, present novel and complex questions about what records litigants should be required to retain and retrieve and how courts should manage the often staggering cost of responding to requests for electronic discovery. Litigants and courts continue to struggle with these important questions in an ad hoc and sometimes inconsistent manner. As a result, at the federal level the Federal Rules Advisory Committee is considering rule changes designed to provide more guidance on how to handle electronic discovery.

This article is part one of a two article series dealing with the emerging area of electronic discovery. Part two of this series will address how to organize an effective response to electronic discovery - from assembling the right team of professionals to the basic steps that should be considered at the preservation, collection and production stages of electronic records discovery. This article discusses why, in most cases, the discovery of electronic records is more complex and expensive than the discovery of paper records. For example, this article cites some shocking statistics about the proliferation of electronic data, which is exceeding in a very short period of time the volume of paper records acquired by institutions over decades or even centuries. It also discusses why electronic records are generally more widely disbursed and individually controlled than paper records and why electronic records typically require the assistance of skilled computer technologists to locate and assemble for production. In addition, this article explains how backup tapes, increasingly sought after in discovery, were designed as a safety net strategy for disaster recovery, not for retrieving information in the ordinary course of business, and why such disaster recovery media often can be restored and searched only at very significant time and cost to an organization. Finally, this article also addresses briefly why the risk of inadvertent waiver of privileges is greater when producing electronic records and how the increased risk is contributing to the high costs of electronic discovery.

Discovery of electronic records is generally more complex and expensive than discovery of paper records.

The volume of electronic information available through discovery has grown dramatically and has exceeded in a very short period of time paper records acquired over decades.

Today's technologies are resulting in the generation of electronic data compilations at breathtaking speed. The fastest-growing component of electronic communication today is e-mail. Dreyer, When the Postman Beeps Twice: The Admissibility of Electronic Mail Under the Business Records Exception of the Federal Rules of Evidence, 64 Fordham L. Rev. 2285 (1996). As of 1996, there were approximately 20 million users of e-mail in the United States. Ibid. The International Data Corporation estimates that 31 billion person-to-person e-mails were sent each day in 2002. This number is expected to grow to 60 billion each day by 2006. Johnston, You've Got Mail!, IDG News Service, (Sept. 26, 2002).

The average office worker in the United States sends an estimated 60 to 200 e-mail messages each day.

Craine, Here Come the Lawyers. Is Your IT Department Ready?, at http://solution/ ess/artarchive.asp (June 20, 2002) An industry technologist for a large financial services company acknowledged that the company's amassed e-mail equaled in volume all of its paper records combined, for all of its customers, for the company's over 100-year existence. The bulk of the company's e-mail was generated after 1996. In 1996, the company had around 6,000 users. Four years later, it had in excess of 78,000 users. The staggering increase in e-mail seems more...

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