Emerging Issues In Electronic Discovery

Author:Mr Scott Fletcher
Profession:Vinson & Elkins L.L.P.

Emerging issues in electronic discovery Most companies involved in civil litigation have grown accustomed to collecting and producing paper documents. They know from experience where the documents are kept, how they are organized, and approximately what quantity will be collected. But the rules of the discovery game are changing.

We live in a digital society. More than 50% of U.S. workers over the age of 25 use computers at work, and they send more than 3.5 billion emails daily. Parties in civil litigation and government regulators now routinely request and obtain production of emails and other electronic data.

Given the growing quantity of electronic documents and their unique characteristics, companies can no longer afford to treat them like paper. They must learn to collect and produce electronic data in a comprehensive and cost-effective manner.

This article identifies several key differences between paper and electronic documents and discusses some of the emerging issues in electronic discovery, including (1) preserving electronic documents and (2) shifting costs of electronic discovery to the requesting party.

1. Paper versus eDocuments

The most important difference between paper and electronic documents for purposes of document production is the quantity of electronic data retained by most companies. Because the storage costs for electronic documents are relatively low, many companies have ignored them. Yet a single printed document may be replicated many times in a company's computer files:

Email is responsible for much of this proliferation of electronic data. If 1000 employees in a company each send and receive a total of 25 emails per day for 250 working days, the company will send and receive 6,250,000 messages annually. While some of these emails will be deleted in the ordinary course of business, many will be saved in the email system and on backup tapes.

Second, in contrast to paper documents that are often separated into project or transaction files, emails are generally organized by user and date like a massive correspondence file. This makes it time consuming and difficult to identify precisely which imemails are responsive to a particular document request.

Electronic copy on author 's hard drive


Electronic copy on network server


Electronic copies on network backup tapes


Electronic copies emailed to 5 recipients, saved on their hard drives, & copied weekly on backup tapes


Total electronic copies


The recent investigation of investment banks by New York Attorney General Eliot Spitzer reportedly began as a fishing expedition. Investigators discovered emails that suggested analysts at one bank had downgraded an Internet company because it refused to do business with the bank. After this email was discovered, Spitzer reportedly told investigators to get "all" the emails.

Third, electronic documents may be scattered throughout a computer system—in the hard drives of desktop and laptop computers, computer fileservers, mainframes, personal digital assistants (PDAs), backup tapes, floppy disks, CD-ROMS, and other storage devices.

Special computer expertise may be required to extract electronic documents from these locations without altering them, and the quantity of electronic documents in these storage devices may be significant. A typical box of paper documents contains 3000 pages, but a 650 megabyte CD-ROM...

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