Vol. 8, No. 5, Pg. 14. Litigating in Cyberspace: Discovery of Electronic Information.

• Author: By James K. Lehman

South Carolina Lawyer

1997.

Vol. 8, No. 5, Pg. 14.

Litigating in Cyberspace: Discovery of Electronic Information

14LITIGATING IN CYBERSPACE: Discovery of Electronic InformationBy James K. LehmanAlthough companies have stored documents electronically for almost half a century, parties pursuing discovery in litigation generally have focused on hard copy documents. However, as computers and e-mail programs have become commonplace in organizations and even in homes, parties no longer are satisfied with boxes of documents but now regularly require document productions to include responsive electronic media.

ELECTRONIC INFORMATION POSES NEW LITIGATION RISKS

Virtually all iscovery entails risk and often surprise. Requests for electdronic information, however, pose special litigation risks. First, adverse parties now have newfound access to information previously unavailable in the course of litigation. This information may take the form of an e-mail, a floppy diskette or a voice-mail message.

Electronic information also may include backup copies (some kept intentionally, some not) of documents in a party's computers or off-site storage. Accordingly, and often unbeknownst to the individual operating the computer, a draft of an agreement or a written office letter or any interoffice e-mails entered into the computer may be preserved, despite the creators' expectation that the file was deleted.

By example, even though Oliver North reportedly shredded numerous documents and deleted numerous computer files related to the Iran/Contra affair, he later found himself confronted with electronic copies of these documents and other information that congressional investigators and computer forensic experts were able to recover from backup computer tapes.

However, even without considering the surprise factor of finding new information previously thought unavailable, electronic media presents a host of practical problems. For example, the amount of information available in electronic format can be staggering. If company-wide system backups are maintained, those backups may represent the equivalent of hundreds of thousands, or more likely millions, of pages of documents. While much of the information stored on backups may not be responsive to discovery requests, it can be extremely costly to even locate and restore, much less review, the responsive information.

While the new volume of information available creates risk, there is also risk inherent in the type of information that is sometimes captured electronically. For example, while there is always a risk that employees may write formal memoranda that could be taken out of context and misunderstood, the risk is significantly increased with the type of spontaneous, sound-byte communication that is common in internal e-mail.

In addition, electronic files may contain information that a hard copy does not. For example, the electronic version may contain: hidden text or comments that cannot be accessed or obtained in hard-copy form; information relating to who prepared the document and when it was edited; prior drafts of the document; information about the nature or timing of deletions; redlined versions or version control comments; and any attached documents that have become lost or separated from the hard copy.

As if the discovery of electronic files did not pose enough risk itself, the risk may...