Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments
Discovery is an enormous part of litigation to litigants, their counsel, and the judges presiding over their cases. One of the primary purposes of discovery is to help get a case that a litigant and its attorney are determined to win ready for a trial. Part of winning a case is telling the right story, and discovery is a part of putting together that story. Where does electronic discovery - or "e-discovery" - come into play? In recent years, there has been a shift from a paper world to an electronic world. In 1999, for example, 93% of all information created was generated in digital form, either on computers or on some other digital media. It is safe to assume that over the last five years, the percentage of information generated in digital form has grown. Today, "[m]illions of transaction[s] with legal significance take place using computer-mediated communications, such as email, the Web, and file exchanges. Products are built and designed, orders are placed, payments are made, goods are shipped, people are hired and fired, all by computer. Everything has been automated . . . ." Moreover, email usage is the primary mode of communication today, exceeding postal usage. Despite this shift, a misperception lingers, namely that discovery does not include electronic documents. To demonstrate, seventy five percent of attorneys in the American Bar Association's Litigation Section, in response to a survey conducted in 1997, indicated that their clients were not aware that electronic documents were discoverable until served with a discovery request for electronic documents. Email and other electronic information are in fact subject to discovery during litigation.