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The Federal Rules of Civil Procedure: The Impact of Digital Discovery

I. The Nature of Digital Discovery - New Problems
Many organizations now store some, if not all, of their files on computers, use email as a significant, if not primary, means of communication, and leave messages on electronic voicemail systems. When one of these organizations becomes a party in a lawsuit, often the opposing party seeks access to this electronically-stored information. Standard discovery procedures allow a party to request all relevant materials from an opposing party. However, it is not clear that discovery of digital information is similar enough to traditional discovery to warrant a wholesale application of existing discovery rules.

Insofar as discovery is intended to provide equal access to all relevant information, digital discovery helps to fulfill the fundamental goals of the system. In some respects, information in electronic format means easier access - a lawyer may search through documents on a disk for key words and dates quickly. Almost all agree that digital discovery means more complete access; email has been called a "truth serum," access to which could expose all manner of wrong-doing.

Despite the benefits, the move to digital documents poses new challenges in the discovery context. First, it may be difficult, time-consuming, and/or expensive for the producing party to segregate relevant from non-relevant or privileged from non-privileged information when it is stored in this format. For example, parties are often required to search back-up tapes, but such tapes are generally designed only for disaster recovery, not for retention and data retrieval, so the cost and burden of reconstructing, restoring, and searching data on such tapes can be enormous. Second, the operating systems for both the producing and the discovering party may be incompatible. A further potential problem relates to "hidden" evidence. There may be more relevant information stored digitally than normally would exist in an all-paper environment. Deleted information may be stored unintentionally in backup files. However, the deleted data may not be stored indefinitely: information of this sort may be overwritten by the normal operation of the computer - once hard-drive space has been exhausted, the computer begins to write over old non-saved information bit by bit. Solutions to this problem - to suspend business activity in order to preserve this information, an extremely costly solution for the producing party, or to preserve every document of the company, which could lead to a system crash - are imperfect at best. If a company stores its data offsite on a website maintained by someone else, who is the custodian of this data? Who controls and must review and produce it?

II. The Pertinent Federal Rules - a Review
Rules 26 and 34 of the Federal Rules of Civil Procedure (which regulate the production of evidence in litigation) are the critical rules governing the discovery of electronic information. These rules make electronic information available for broad discovery but provide some significant protections for the party whose electronic information is sought.

Rule 26, General Provisions Governing Discovery: Duty of Disclosure, states in relevant part that all parties in litigation must disclose "a copy of, or description by category and location of, all documents, data compilations, and tangible things in possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings" FED. RUL. CIV. PROC. 26(a)(1)(B). Rule 26 also provides the scope of discovery: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things." FED RUL. 26(b)(1). Rule 26 also defines discovery limits: "The frequency or extent of use of the discovery methods . . . shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive . . . (iii) the burden or expense of the proposed discovery outweighs its likely benefit . . ." FED. RUL. CIV. PROC. 26(b)(2). In addition, Rule 26 allows a court to authorize a protective order to protect a party from "annoyance, embarrassment, oppression, or undue burden or expense" FED. RUL. CIV. PROC. 26(c).

Rule 34, Production of Documents And Things and Entry Upon Land for Inspection and Other Purposes, states in pertinent part: "[a]ny party may serve on any other party a request (1) to produce . . . designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form)" FED. RUL. CIV. PROC. 34(a). A 1970 amendment created this description of "documents" to make clear that Rule 34 applies to electronic evidence. Advisory Committee Notes, FED. RUL. CIV. PROC. 34(a). The advisory notes also confirm that the producing party may be responsible for translating the information into a form readable to the discovering party.

III. Proposals for Change
One of the critical debates revolves around whether or not the discovery rules, Rule 26 in particular, should be changed to address the complexities of digital discovery. While there is a general consensus that digital discovery poses new questions and that some changes need to be made to the existing system, there is no consensus on what form such changes should take. The majority, although in no way singular, opinion among reformers is that the rules themselves should not be changed; instead, proposals favor revisions to the Manual for Complex Litigation and/or the creation of a manual specific to the discovery of electronic evidence.

Those in favor of amending the rules argue that lawyers often don't know what electronic data their clients have and, as a result, treat such data as if they do not exist. As a lawsuit proceeds, it becomes more difficult and expensive to recover and produce the data for the reasons outlined above. Federal Rule 26 on initial disclosures could, therefore, be modified to expressly require immediate exchange of information about electronic data  and to specify the need for preservation. Amending Rule 26 would then provide much-needed clarity and predictability for practitioners and judges, greater specificity about what constitutes a discoverable "document," and defined limits on costs and burden.

Those who argue against amending the rules contend that Rule 26 adequately protects parties; the general principle Rule 26 articulates provides a sufficient balancing test between cost and burden on the one hand and benefits of discovery on the other. Furthermore, there is widespread concern that, given the rapid rate of change in the electronic world, any rule would become outdated quickly. Alternative solutions proposed range from working with the relevant parties to establish norms or guidelines for retention of electronic information, to modifying the Manual for Complex Litigation, to generating a new manual dealing exclusively with the issues of digital discovery. 

At present, various judicial efforts addressing the issue are in progress.  The Judicial Conference of the United States, the Standing Committee on Rules of Practice and Procedure, the Civil Rules Advisory Committee and the Discovery Subcommittee are sponsoring a "mini-conference" on electronic discovery on October 27, 2000.  The event will be an educational seminar on computer-based discovery for the benefit of Subcommittee members. While no official action will be taken as a result of the meeting, its existence is emblematic of the heightened awareness of digital discovery on the part of the federal judiciary.

While there is uncertainty about how to address these problems, there is relative consensus that judges, as the managers of the discovery process, should be trained in the specifics of discovery in the digital context. In the existing discovery system, judges have nearly total discretion to order and then to limit discovery. Over the past 2-plus decades, judges' discovery orders have spanned the spectrum, including the total turnover of digital material at the expense of the producing party, cost-sharing plans, limited discovery, and other creative solutions. In order to manage the discovery process efficiently and fairly, judges must be well-versed in the potentials and problems of digital discovery.