E-discovery

Electronic discovery or e-discovery refers to any process in which electronic data is sought, located, secured, or searched with intention of using it as evidence in civil or criminal cases. The items subject to e-discovery includes text, images, calendar files, databases, spreadsheets, audio files, animation, Web sites, and computer programs. Moreover, documents or data compilations, word processing documents, e-mails, voice mail and instant messages, blogs, backup tapes and database files are also discoverable as electronic documents.

Courts have opined that for the purpose of discovery proceedings, electronic data can be categorized as active on-line data; near-line data; off line storage/archives; backup tapes, and erased, fragmented or damaged data[1]. Generally, the first three categories of data are considered accessible and the last two categories are considered inaccessible. Even though the time takes to obtain accessible data ranges from milliseconds to days, accessible data does not need to be restored or otherwise manipulated to be usable. On the other hand, inaccessible data are not readily usable unless, the data such as the backup tapes, fragmented data, and erased data are restored, de-fragmented, and reconstructed respectively.

Recently, United States District Court for the District of Minnesota has held that data which is located on archived, electronic back-up tapes is not reasonably accessible[2]. Electronically stored information that is not reasonably accessible will be subjected to discovery only for good cause. Even though, electronically stored information is not reasonably accessible, the party has a statutory duty to preserve it. Whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case. It is often useful for the parties to discuss this issue early in discovery.

The form of production is more important to the exchange of electronically stored information. In the absence of any specified request regarding the format, electronically stored information can be produced in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production, runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form.

Most of the courts have taken the view that electronically stored information has to be produced in its native format. Recently, District court for Eastern Missouri, ruled that electronically stored information should be produced in electronic format, by granting plaintiffs motion for production of electronically stored information in its native or other usable format[3]. Kansas District court also opined that electronic documents have to be produced in native format[4]. District court for the Southern District of New York ordered that documents already produced in hard copy form be produced in electronic format[5].

Electronic discovery can constitute confidential attorney work product and can involve privileged attorney-client communications. Considering whether an e-mail communication was privileged under the attorney-client privilege, Indiana District Court held that, while resolving disputes involving the attorney-client privilege as to electronic communications, the courts have to apply the same tests which apply to traditional paper documents[6]. Several courts have indicated that discoverable electronically stored data includes voice mail[7]. Courts have employed the same procedures for determining whether voice mail is privileged as they would in analyzing other types of communications. Insofar as voice mail satisfies the elements of applicable privileges, it will receive protection comparable to that accorded to other types of privileged communications[8].

In light of new standards for electronic discovery, litigants must take a proactive stance in the face of potentially relevant electronically stored information. A duty to preserve evidence exists when a party has notice that the evidence is relevant to litigation or when a party should know that the evidence may be relevant to future litigation. Many of the State Courts have recognized intentional destruction of electronic evidence as spoliation and ordered monitory sanctions including attorney fees or fines. The Columbia District Court issued a $ 2.75 million sanction against Philip Morris for the destruction of electronic records[9]. Even the 2006 amendment is not fully exhaustive to face the challenges created by e-discovery.

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[1] Zubulake v. UBS Warburg LLC, 216 F.R.D. 280

[2] Best Buy v. Developers Diversified Realty2007 U.S. Dist. LEXIS 7580

[3] Lawson v. Sun Microsystems, Inc., 2007 U.S. Dist. LEXIS 65530

[4] Williams v. Sprint/United Mgmt. Co

[5] In re Honeywell Int'l, Inc. Sec. Litig., 2003 U.S. Dist. LEXIS 20602

[6] Long v. Anderson Univ., 204 F.R.D. 129, 134 (S.D. Ind. 2001)

[7] Bayer Corp. v. Roche Molecular Sys., Inc., 72 F. Supp. 2d 1111, 1121 (N.D. Cal. 1999)

[8] Lewis v. UNUM Corp. Severance Plan, 203 F.R.D. 615, 617 (D. Kan. 2001)

[9] United States v. Philip Morris USA, Inc., 327 F. Supp. 2d 21