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Bar News - January 17, 2003 Electronic Discovery - Don't Forget Those Computer Files! ELECTRONIC DISCOVERY has become an emerging topic of great interest in the litigation world. Higher profile cases have increased its prominence in the news. Microsoft and Enron, for example, both involved significant information found in e-mail communications and documents retrieved in electronic format after originals had been destroyed. Electronic discovery raises many issues not originally contemplated under most court rules relating to traditionally discoverable material. Privacy, client confidentiality, spoliation of evidence, and costs associated with producing discovery responses are all considered through a new scope where digital discovery is involved. Following is a look at some of the issues that should be considered in litigation as it relates to the utility and availability of electronic files. Overlooked sources: While e-mail communications and word-processing documents may first come to mind, consider these as well: PDAs, cell phone memories and records, instant messenger logs, IP addresses of Web sites visited by a particular computer. It's all there, and ripe for the picking if you know how to ask for it. Email, informal and all too candid: One of the interesting things about electronic discovery, especially discovery related to e-mail and instant message transcripts, is that people sometimes say things electronically that they wouldn't think of reducing to writing, so these sources are more likely to tell the real story in your case. Depending on the nature of your case, the information available in electronic format may actually be more important than the paper documents and testimony of witnesses. Consider a contested divorce case with allegations of marital infidelity. Do you think there's a good chance the parties communicated through e-mail, or some type of instant message service, and certainly through a speed dial contained in a cell phone? Do you routinely ask for that information in your domestic litigation matters? You should! Meta-data. In contract disputes, the "meta-data" of a document, that is the hidden code information that is created behind the actual document text, can show who drafted, made edits, reviewed, received or deleted a document. Obviously, this information can be very revealing. Electronic Discovery Resource Page can be found at http://mylawtips.com/electronicdiscovery.htm. Reprinted with permission from "The ESQLawtech Weekly - Your Technology Partner," found at www.mylawtips.com. For more information or to subscribe, contact info@mylawtips.com.
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