Ticking time bomb.

• Author: Read, Gregory C.
• Position: Electronic discovery

THERE'S a ticking time bomb in one of your files. If not carefully diffused, it could blow up any chances for a successful settlement or trial in a case. The bomb is electronic discovery, one of the most potent weapons in the plaintiffs' discovery arsenal.

Many plaintiffs' firms are way ahead of us in this electronic warfare. Some have spent millions of dollars in computer hardware and software that will allow them to detect, examine, sort, decode and format large quantities of electronic data stored by our clients. There are seminars in how to "set up" unsuspecting or unknowledgeable defendants with respect to the identification and production of electronic data. E-mail can expose all manner of alleged wrongdoing.

An overarching issue

Rule 34(a) of the Federal Rules of Civil Procedure provides that any party may request production of "any designated documents ... and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably useable form." (My italics.) Many states have similar discovery statutes. Most discovery requests define "document" to include electronic evidence.

Rule 26 includes "data compilations." In federal actions, therefore, defendants may be required to produce electronic data, including e-mails, without being specifically asked to do so.

While some corporations are very sophisticated with respect to the requirements for discovery of electronic data, many are not. Large, complex litigation is often handled by senior defense attorneys who are sometimes behind the curve with respect to sophisticated computer technology. Many judges assume that the rules applicable to the discovery of hard-copy documents are easily applied to electronic data. They may grant discovery requests for electronic data without understanding the technological issues involved.

We're in the electronic world

Computers have revolutionized the way we store information and communicate. The Internet has revolutionized the way we obtain information. In order to write this short piece, I spent 35 minutes on the Internet and printed out a stack of documents approximately two inches thick concerning electronic discovery.

Computers store information electronically in the form of "files," but it is important to understand that computers generate far more information than most of us realize. This "hidden" data comprises a large portion of the total universe of discoverable...