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The New Face of Electronic Discovery: Amendments to the Federal Aaron Walter University of Georgia School of Law AaronL@uga.edu


The New Face of Electronic Discovery: Amendments to the Federal
Rules of Civil Procedure May Tame Electronic Discoverys Wild West
By Aaron L. Walter

This is the original version of the article, which was awarded second place honors in the Third
Annual Law Student Writing Contest of the American Bar Association Tort Trial & Insurance
Practice Section. Please note a modified version was published in the Advocate.

I. Introduction
Electronic discovery refers to the requesting and acquiring of digitally based documents
during pre-trial discovery. Since the 1970 amendment to Federal Rule of Civil Procedure 34,
courts have uniformly held that computerized data may be subject to discovery rules.
1
Though
discovery rules are clearly applicable to electronic discovery, no one can agree on what to call
the field. It has been referred to by courts, commentators, and practitioners as ED (electronic
discovery), EDD (electronic data discovery), digital discovery, e-discovery (with or without a
hyphen), and as I simply describe it electronic discovery. While electronic discovery is not a
new phenomenon for some practitioners and private discovery firms, it is cutting edge enough
that there is not even a standard name for the legal genre.

1
M. Dorvee and Kristen R. Connor, Electronic Discovery in Technology Litigation, 20 No. 11 Computer & Internet
Law. 11 (2003) (citing Bills v. Kennecott Corp., 108 F.R.D. 459, 461 (D. Utah 1995)); Rowe Entm't, Inc. v William
Morris Agency, Inc. (S.D.N.Y. 2002) (electronic documents are no less subject to disclosure than paper records).
2
Recent court decisions reveal the need for standard rules within the federal courts for dealing
with electronic discovery. Amendments to the Federal Rules of Civil Procedure to deal with the
issue have been proposed and it is expected that there will be vigorous public debate as to the
final structure of any amendment or whether the Rules should be amended at all.
Plaintiffs attorneys, led by the American Trial Lawyers Association (ATLA), argue that there
is no need for adding special amendments to the Federal Rules of Civil Procedure. They argue
that information is information and that Rules governing paper discovery are equally applicable
to the electronic variety. Plaintiffs attorneys are likely candidates for placing initial discovery
requests for electronic documents. It is understandable that they would not want special rules to
develop that might hinder Discovery:-Amendments-to-the-Federal/' >their ability to access these documents or increase the costs of such
actions. However, Discovery:-Amendments-to-the-Federal/' >their stance flies in the face of the many fundamental differences between
printed and electronic information; between traditional business methods and the modern world
of technology.
Many large corporations, insurance providers, and defense attorneys endorse the development
of special rules and guidelines pertaining to electronic discovery. Most importantly, they would
like safe harbors which would allow for the regular destruction of electronic documents during
the normal course of business and a shifting of costs back to the requesting party if recovery
were too costly. This would effectively deny many plaintiffs access to potentially pertinent
information. Alternatively, it may shift a great financial burden to requesting parties should they
want access to certain electronic records.
The better policy is to provide for new rules which acknowledge the fundamental differences
between electronic documents and paper documents and provide specific guidelines as to how
3
they should be handled. This would ensure that the courts are not left to make ad-hoc decisions
or adopt competing tests to make important determinations.
The proposed amendments to the Federal Rules of Civil Procedure represent an important
realization that electronic discovery is different and that it needs special rules and standards to
guide attorneys, parties, and judges through its pitfalls. While some provisions of the
amendments are wise and require little change, others may need to be re-thought so that this ball
that is rolling towards a very important finish line creates rules that solve problems, and does not
create new ones.

II. Background
a. Usage of electronic data
To understand why electronic discovery has become such an invaluable part of litigation, it is
important to understand the scope of electronic document usage in the United Discovery:-Amendments-to-the-Federal/' class='doin' >States.
The volume of potential electronic evidence continues to rise each year and e-mail usage is
beginning to replace many traditional phone conversations.
2
Use of e-mail in the business
setting has grown immensely in the past ten years, and is now a primary form of business
communication.
3
Estimates have placed the total number of e-mails sent each day at 31 billion.
4

By 2005 more than 17.5 trillion electronic documents may be created each year.
5


2
Hon. Shira A. Sheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the
Task?, 41 B.C. L. Rev. 327, 328 (2000).
3
Linda M. Watson, Anticipating Electronic Discovery in Commercial Cases, 93-May Mich. B. J. 31, 31 (2004)
(citing Patricia Nieuwenhuizen, E-mail: The Smoking Gun of the Future, The National Law Journal, December 11,
2000) (In the year 2000, office workers exchanged an estimated 25 billion e-mail messages per day).
4
Another study estimates that 93% of actual documents currently generated are in electronic
form, and that only 30% of those documents are ever produced in hard copy.
6
Instead of being
converted to paper, an estimated 70% of these electronic documents are being created, revised,
modified, and stored entirely in electronic form.
7
Documents that do make it to paper are most
often printed from a computer, which means the information exists in electronic form as well as
paper.
8

The ability of modern technology to store huge amounts of digital information has created
discovery dilemmas. Possibly the most critical issue is that as the volume of evidence a party
wishes to discover grows, so grows the costs inherent to its discovery.
While there is of yet no uniform list of the many Discovery:-Amendments-to-the-Federal/' target='blank' class='doin' >types of electronic information subject to
discovery, numerous Discovery:-Amendments-to-the-Federal/' target='blank' class='doin' >types of information can and have been considered.

4
Lynn Jokela, Comment: Electronic Discovery Disputes: Will the Eighth Circuit Courts Move Beyond Ad-Hoc
Decision Making?, 30 Wm. Mitchell L. Rev. 1031, 1031 (2004) (citing Wired media (Dec. 27, 2002), available at
http://www.wiredledia.co.uk/news_full.asp?IDW297 (last visited Oct. 26, 2004)).
5
Jokela, Supra note 2, at 1031 (citing Ronald Raether, E-Mail Maelstrom, 13 Bus. L. Today 57, 57 (Sept./Oct.
2003)).
6
Ricahrd E. Best, Why Discover Electronic Data?, available at
http://californiadiscovery.findlaw.com/why_electronic_discovery.htm (last visited Oct 26, 2004).
7
John L. Carroll, Developments in the Law of Electronic Discovery, 27 Am. J. Trial Advoc. 357, 357 (2003). (citing
Michael R. Arkfield, The Wired Lawyer: Electronic Discovery Here to Stay, Az. Atty 8 (July-Aug. 2002)).
8
Peter Lyman and Hal. R. Varian, Executive Summary, How Much Information, 2003 at
http://www.sims.berkeley.edu/research/projects/how-much-info-2003/execsum.htm (last visited Oct. 26, 2004)
5
First among these are user created electronic documents. This category includes documents
created by a computer user, including word processing documents like those made in Word® or
WordPerfect®, spreadsheets, and presentations.
9

A second category is e-mail, which unlike interaction via telephone, creates a discoverable
record. E-mail is easily distributed to any number of recipients and is stored on both the senders
and the recipients computers.
10

The next category is information that is hidden. This is information that is often created and
maintained on a computer that was not intentionally created by the user but was automatically
created or modified by the computer itself.
11
The most pertinent of these hidden data are meta-
data.
12
These contai