Electronic Discovery: Know What You Have Before Your Adversary Does

Understanding "What, Where & How" in the New Technological Landscape

Federal Rule 26(f)(2) and (3), as well as many similar local federal court rules and state court rules, requires parties to begin the discovery process by identifying and resolving "any issues relating to the disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." The requirement of Fed. R. Civ. P. 26(f) necessarily imposes a duty to survey and identify precise locations of electronically stored information (ESI), a host of possible sites that until now have been collectively referred to as "cyberspace."

The incorporation of ESI into the text of the rule alters profoundly the "what, where and how" of discovery. Failure to understand the technological landscape at the onset of litigation may result in the loss or alteration of important evidence, impairing the ability to prosecute or defend against claims. Likewise, the inability to understand the potential complexities involved in continued preservation, collection and production may place litigants at a disadvantage from the moment that the mandatory discussion with the adversary and the court begins.

In order to avoid pitfalls and maximize the benefit of an early conference (whether required by court rule or simply initiated as good practice), one should understand the new "what, where and how" of e-discovery.

Where?

Perhaps the most challenging question is "where," that is, the quantity and technological variations in the media that are now the subject of discovery. The list of "where" can be exhausting, and parties often don't fully comprehend the extent of their sources until they already have a discovery problem, such as lost or altered data. For evidence of the challenge, one need look no further than the recent news stories revealing the inability of the FBI to determine exactly how many of its own laptops containing sensitive files have gone missing. (See "FBI Lags in Securing Its Laptops and Weapons," The New York Times, Feb. 13, 2007.)

Of course, the more centralized network servers are the primary repositories for e-mails, word-processing documents and other relevant forms of communication within a business. However, the size of a business and the configuration and location of hardware still create challenges for the seemingly basic task of specifying locations of active network information.

The active network is rarely the only place one...