Electronic Discovery: Rules for a Digital Age

55 Pages Posted: 7 Mar 2013 Last revised: 17 May 2014

See all articles by Burke Ward

Burke Ward

Villanova University - School of Business

Janice Sipior

Villanova University - School of Business

Jamie Hopkins

The American College

Carolyn Purwin

Kent & McBride

Linda Volonino

Canisius College - Richard J. Wehle School of Business

Date Written: February 27, 2011

Abstract

Electronically stored information has become the dominant form of discovery in the litigation process. The duty to preserve and produce evidence that is discoverable in pending or anticipated litigation has led to unique problems in electronic discovery. Electronically stored information is more voluminous than paper discovery and can be stored or produced in a variety of formats. These issues have contributed to increased litigation costs. Additionally, electronic discovery has contributed to an increase in the unintentional disclosure of privileged information, which can have significant consequences to litigants.

With seemingly unlimited ways to retrieve data, Congress and the Judiciary have responded to these issues by making changes to both the Federal Rules of Evidence (FRE) and Federal Rules of Civil Procedure (F.R.C.P). These changes addressed the prevalence and scope of electronically stored information and its impact on the discovery process. The Amendments’ design could work to control and allocate costs, address issues unique to electronic data, and protect against accidental waiver of the attorney-client privilege in electronically stored information. The ubiquitous nature of electronically stored information has increased the complexity and cost of compliance. This article examines the differences between hard copy and electronic discovery and how electronic discovery has complicated the litigation process. It analyzes the issues that surround electronic discovery, including the preservation and production of electronic documents, whether production of metadata is required, ethical issues of metadata, the allocation of discovery costs, privilege, waiver of privilege, and spoliation. Further, this article reviews the history of electronic discovery, leading to the 2006 amendments to the F.R.C.P., and the 2008 amendment to the FRE 502.

Keywords: Electronic Discovery, FRE, Federal Rules of Evidence, Federal Rules of Civil Procedure, FRCP, Discovery, law, legal, court, criminal, internet, website, computer, lawsuit

Suggested Citation

Ward, Burke and Sipior, Janice and Hopkins, Jamie and Purwin, Carolyn and Volonino, Linda, Electronic Discovery: Rules for a Digital Age (February 27, 2011). Boston University Journal of Science and Technology Law, Vol. 18, No. 150, 2012. Available at SSRN: https://ssrn.com/abstract=2229408

Burke Ward

Villanova University - School of Business

800 Lancaster Avenue
Villanova, PA 19085-1678
United States

Janice Sipior

Villanova University - School of Business

800 Lancaster Avenue
Villanova, PA 19085-1678
United States

Jamie Hopkins (Contact Author)

The American College ( email )

Bryn Mawr, PA 19010
United States
610-526-1441 (Phone)

HOME PAGE: http://www.theamericancollege.edu/why-us/faculty/jamie-patrick-hopkins-esq.-j.d.-m.b.a

Carolyn Purwin

Kent & McBride

1617 John F Kennedy Blvd #1200
Philadelphia, PA 19103
United States

Linda Volonino

Canisius College - Richard J. Wehle School of Business

United States

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