Electronic Discovery: Rules for a Digital Age

Electronically stored information has become the dominant form of discovery in the litigation process. The duty to preserve and produce evidence that is discoverable in pending or anticipated litigation has led to unique problems in electronic discovery. Electronically stored information is more voluminous than paper discovery and can be stored or produced in a variety of formats. These issues have contributed to increased litigation costs. Additionally, electronic discovery has contributed to an increase in the unintentional disclosure of privileged information, which can have significant consequences to litigants. With seemingly unlimited ways to retrieve data, Congress and the Judiciary have responded to these issues by making changes to both the Federal Rules of Evidence (FRE) and Federal Rules of Civil Procedure (F.R.C.P). These changes addressed the prevalence and scope of electronically stored information and its impact on the discovery process. The Amendments’ design could work to control and allocate costs, address issues unique to electronic data, and protect against accidental waiver of the attorney-client privilege in electronically stored information. The ubiquitous nature of electronically stored information has increased the complexity and cost of compliance. This article examines the differences between hard copy and electronic discovery and how electronic discovery has complicated the litigation process. It analyzes the issues that surround electronic discovery, including the preservation and production of electronic documents, whether production of metadata is required, ethical issues of metadata, the allocation of discovery costs, privilege, waiver of privilege, and spoliation. Further, this article reviews the history of electronic discovery, leading to the 2006 amendments to the F.R.C.P., and the 2008 amendment to the FRE 502.