The next frontier in discovery in civil litigation is electronic discovery. Plaintiffs’ attorneys want more of it, big businesses want less. [Disclosure: my law firm works for individual plaintiffs, corporate plaintiffs, individual defendants (albeit rarely) and corporate defendants]. What is electronic discovery? For a starting point, take this definition from a Business Week article describing a potential rule change in Federal lawsuits on a party’s duty to preserve electronic records:
This broad category of digital information includes spreadsheets, databases, memos, letters, PowerPoint presentations — and most important, the e-mail messages that have recently plagued so many companies in court.
More dangerous (to defendants especially) are the drafts that people think are overwritten after saving documents or replacing old versions of electronic files with new ones. A good computer technician can dig up files that a company does not even remember it had.
The final decision on this aspect of discovery will not be finalized until next year. Right now the various interested parties are trying to get the Judicial Conference of the United States to adopt their competing proposals for parameters on electronic discovery in the Federal Rules of Civil Procedure. The Supreme Court would then review and approve or disapprove the suggested rules and the approved rules would be subject to Congressional veto (essentially Congress can disapprove proposed rules and if it takes no action the rules will go into effect, see here for more information on Federal Rulemaking). The Federal Rules only apply in federal lawsuits, but they are the model (and usually the template) for each of the 50 states’ and District of Columbia’s separate systems.
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