Saturday, June 22, 2002

electronic discovery

How much has email and the storage of records in electronic databases changed the exchange of information between parties to a lawsuit? Typical requests during the discovery phase of a case include such things as asking for the production of documents, depositions of parties and possible witnesses, and the exchange of written questions, or interrogatories. More and more businesses are conducting a greater share of their every day work with the use of computers.

An article on the pages of the Law Library Resource Xchange ( called Electronic Discovery - Or, the Byte that Bit does a very good job of discussing some of the issues that you might be faced with if you're an attorney receiving discovery from opposing counsel in an electronic form. Do you have the right hardware and software to read the information? Is it in a format that you can use, and on media that you can read? Will it need to be converted in some manner, and do you have the personnel with the technical skills to help? Is there hidden data, or missing data? The article is very useful, but it's three years old, which is a lifetime in internet years.

Electronic Discovery: A How-to Guide for Litigators is a special feature this month on, and it has a wider scope in its coverage of digitalized discovery than the article. For example, in the section on Responding to Electronic Discovery:
Successful electronic discovery response means more than just gathering information reactively; it means maintaining control over information creation and storage in the regular course of business. This mandates a new way of thinking for in-house attorneys, their outside counsel, and corporate IT personnel as electronic discovery preparedness becomes part of the company's business strategy, rather than simply a case-by-case reaction to pending subpoenas or document requests. In this important three-way communication, each party has an important role to play.
Some of the other issues discussed are the potentially staggering costs of retrieving information, methods that can be used to index electronic documents, and a need to possibly review and update discovery rules in this new electronic age. It's worth reading as much for the suggestions it offers as it is for the questions it raises.

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