Six Articles on Electronic - Craig Ball

Craig Ball © 2007
Hitting the High Points of the New e-Discovery Rules
By Craig Ball
The last time the Federal Rules of Civil Procedure were amended to deal with electronic
evidence, eight-track tapes were the hot technology, the Internet and cell phones were the stuff
of science fiction and computers were room-sized behemoths owned by corporations,
universities and governments. Times have changed, and the Rules have again changed with the
times.
For the last six years, some of the best minds of the bench and bar worked to amend the Rules
to address the enormous challenge posed by discovery of electronic evidence. These
amendments took effect on December 1, 2006 and, even if you don’t regularly appear in Federal
court, they merit your attention because they’re sure to rapidly impact state court practice, too.
Here’s a synopsis of the principal amendments, along with some observations about their
operation and impact.
Introducing ESI
There’s a new species of evidence in town. It’s called ESI, for Electronically Stored Information,
and it encompasses any potentially relevant data that’s stored on computers, disks, tape,
gadgets and the Internet.
The amendments don’t so much create new rights as compel lawyers and litigants to deal with
the central role computers and the Internet play in business and our lives. ESI comprises a
startling 95% of all information created nowadays, yet legions of lawyers have been remiss in
marshalling this rich evidentiary resource, preferring instead to focus on familiar paper
documents. The Rules make clear that discovery of ESI stands on equal footing with discovery
of paper documents and require that any request for production of documents be understood to
include a request for ESI. Although the Committee that drafted the ESI amendments could have
stretched the definition of “document” to include ESI, they wisely recognized that more was
needed. After all, so much of the electronic information that impacts our lives—like databases,
web content, voice messaging, even spreadsheets—bears little resemblance to conventional
documents. Instead, ESI is defined broadly to encompass the forms computer-based
information takes today and adapt to whatever tomorrow brings.
The upshot of the new Rules is that:
• ESI is discoverable
• Litigants must preserve and produce ESI
• Lawyers must understand how to request, protect, review and produce ESI
• The courts have the tools to rectify abusive or obstructive electronic discovery
Preservation of ESI
Though they don’t detail what litigants must do to meet their obligation, the amended Rules are
grounded on the expectation that all parties will preserve potentially relevant ESI. Not only must
accessible ESI be preserved, but electronic information that a party deems inaccessible must
also be preserved so as not to preempt an opponent’s right to compel production.
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