Ediscovery: Preserving, Requesting & Producing Electronic Information
2003; Routledge; Volume: 19; Issue: 1 Linguagem: Inglês
ISSN
0882-3383
AutoresLisa M. Arent, Robert D. Brownstone, William A. Fenwick,
Tópico(s)Law, AI, and Intellectual Property
ResumoI. INTRODUCTION (1) As one federal judge so astutely predicted two decades ago: It may well be that Judge Charles E. Clark and the framers of the Federal Rules of Civil Procedure could not foresee the computer age. However, we know we now live in an era when much of the data which our society desires to retain is stored in computer discs. This process will escalate in years to come; we suspect that by the year 2000 virtually all data will be stored in some form of computer memory. (2) The 1980 prediction was not too far off. In our high-tech era, a body of law (3) has evolved regarding the parameters of the preservation, collection, and production of electronic evidence. (4) This Essay discusses the application of discovery rules and common law discovery principles to electronic information issues. II. PRESERVATION AND COLLECTION OF ELECTRONIC DATA A. The Duty to Preserve Evidence 1. Preservation Obligations in the Electronic Context A party has a duty to preserve potentially relevant evidence. Evidence includes all forms of information, not only hard-copy documents, (5) but also electronic information stored on a computer, in a database, or in any other electronic format. A requesting party is entitled to obtain discoverable information from an electronic source to the same extent as from a filing cabinet. (6) In each situation, the responding party must determine the potential sources and locations of responsive information and then conduct a diligent search for responsive materials. Rule 34 of the Federal Rules of Civil Procedure defines the term document broadly, to include information in any tangible format. (7) Although discovery of electronic data has become an issue of increased interest and concern over the last several years, the notion that computer data is discoverable is not new. In 1970, Congress modified Rule 34 to explicate that the term encompassed more than just hardcopies. (8) Neither of the California Discovery Act provisions regarding the production of and tangible things defines document. (9) Instead, in all Discovery Act sections, by virtue of section 2016(b)(3) of the California Code of Civil Procedure, document is coextensive with writing as defined in section 250 of the California Evidence Code. Section 250 defines writing as handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof. That definition has been interpreted broadly to include information in electronic form. (10) The broad definition of typically used in requests for production encompasses information stored on computers and on computer media, such as floppy disks, zip drives, jaz drives, (11) and archival/emergency storage devices (such as back-up tapes). (12) Moreover, electronic versions of documents can contain additional, non-printed information, such as the dates of creation, access and/or modification and, if relevant, sending and receiving details. (13) 2. Nature and Consequences of Duty to Preserve The responding party's failure to preserve evidence or destruction of evidence can lead to a variety of adverse consequences. It may preclude the requesting party from obtaining otherwise relevant or discoverable evidence; it may harm the integrity of the court proceedings; and it may ultimately harm the blameworthy party. a. Ethical Obligations When conducting discovery, an attorney should keep in mind several principles set forth in the ethics rules. Model Rule of Professional Conduct 8.4(c)-(d) proscribes dishonesty, fraud, deceit, or misrepresentation [or] conduct that is prejudicial to the administration of justice. …
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