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Electronic Discovery

By: Darrell M. Felsenstein

Instead of using file cabinets, many, if not most, offices and businesses now store at least some of their documents on computers. After all, it is a space saver and organization is much easier.  However, what you must be aware of is that computer documents, e-mails and drafts of letters and agreements and the like can be "discovered" in litigation in much the same way as paper documents.

In today's ever increasing world of electronic over dependence, no e-mail, no draft, and no letter is ever really discarded.  It sits someplace in the computer's hard drive waiting for the right complex commercial or employment litigation matter to come along.  By pressing delete on your computer keyboard, you are not destroying the document.  Nor are you throwing the document out when you place it in your computer's recycle bin, or emptying the trash. Many of those in the legal profession have decried the idea that these thrown away items could be discovered. Some have said that if we still lived in a paper world, these items would really be gone and should not then, by analogy, be discoverable at all. Nevertheless, "electronic discovery" is here.  The law of what one is entitled to seek or protect from discovery is unsettled and continuing to evolve.

Ramifications

There are enormous ramifications to electronic discovery.  The water cooler conversation has now been replaced by the e-mail and the political incorrectness of the issues "discussed" are waiting to be found out. Unlike typical paper discovery, the Courts, lawyers and litigants are behind in what can be discovered and when it should be sought and what should be sought. There are many companies which now specialize in this growing area.

With privilege and confidentiality still applying, there will be many documents that will not be discovered. Also, the cost of this type of discovery can be enormous. The time and expense needed to analyze the computer systems and determine how to access the data is labor intensive. What also must be analyzed is whether there truly will be a smoking gun found; whether the documents and e-mails are cumulative to the paper discovery which has already been produced.  There are more questions than answers.

Privacy Policies

Steps can be taken to protect the privacy of computer data.  An office which permanently archives certain items and not others can give some peace of mind. However, even when setting up a policy of this kind, in the midst of litigation or with notice that litigation might ensue, no documents should be removed.

Given the broad discretion that Courts have to permit discovery, it is clear that electronic discovery will become more common in more litigation matters.  The cost of conducting this type of discovery will likely go down.  Companies and businesses which rely upon their computers best beware. The smoking gun may only be a mouse click away.