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486 THE LEGAL SETTING
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is now more like the entire library system of a major metropolitan city And now consider the data stored on a Fortune 100 company s network with literally tens of thousands of desktop and laptop computers and thousands of servers, many with huge storage arrays of disk drives The US Library of Congress, with its analog collection of more than 120 million items on approximately 530 miles of bookshelves, would never ll this much storage space3 The simple truth is that, as a society, we are pack rats, retaining as much as we can within the limits of our storage capacity As that capacity has increased through the availability of ever cheaper digital storage technologies, our tendency not to throw things away has taken over The bottom line is that we could not manage the data we have stored today without the bene t of the digital technologies we have developed for that storage
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484 INCREASED VALUE OF DIGITAL DATA
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It should not be surprising to learn that the value of our digital data is enormous In our increasingly service-oriented economy, our ideas are often more valuable than the things they are designed to enable Imagine the mining company that develops new methodologies for extracting ore from stone, but owns very little ore-bearing land The methodology, stored as zeros and ones on a hard drive thousands of miles away from any precious gems, may be worth far more than the inventing company s mining results And this scenario is repeated time and again in American businesses in every sector of the economy
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485 GOING AFTER EVIDENCE
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With so much valuable information stored on computer systems, and so much of our vital communications passing through computer networks, it is no surprise that our massive communication and storage networks are the target of attorneys looking for proof to support their positions when businesses nd themselves in complex commercial disputes Lawyers increasingly engage in electronic discovery for a simple, straightforward reason: because that is where the data is And it is not just more of the same data once available to counsel in analog form Electronically stored information has some special properties that in many ways make it a better source of proof An understanding of the tools and techniques of computer forensics practitioners can provide an attorney with a wealth of information to review that would otherwise be unavailable And in a litigation setting, more information is generally a good thing (especially if the information is about the other side)
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The Federal Rules of Civil Procedure make it clear that this wealth of information is generally discoverable, but provide certain limitations For instance, Rule 26 of the Federal Rules of Civil Procedure speci es that any matter, not privileged, that is relevant to the claim or defense of any party is discoverable4 Rule 34 provides a mechanism, the discovery request, that permits service by one party on another of a request for documents:
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Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor s behalf, to inspect and copy, any designated documents5
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Of course, today the Library of Congress also stores a sizable amount of digital data on its own very extensive computer network 4 Fed R Civ P 26(b)(1) 5 Fed R Civ P 34
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INTRODUCTION TO E-DISCOVERY
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The de nition of what constituted a document was extended to include electronic documents in the 1970 amendments to Rule 34 of the Federal Rules6 Indeed; the federal courts have been in agreement for years that electronic data is discoverable For instance, in 1995 the Federal District Court for the Southern District of New York wrote: it is black letter law that computerized data is discoverable if relevant ;7 as early as 1985 the Federal District Court for the Central District of Utah had declared that information in computers should be [as] freely discoverable as information not stored in computers ;8 and the Federal District Court for the Southern District of Indiana reiterated this point in 2000: [C]omputer records are documents discoverable under Fed R Civ P 34 9 Although discoverable, electronic documents face the same limitations under the Federal Rules as do paper documents Rule 26(b)(2) limits discovery where:
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(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely bene t, taking into account the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues
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As the three sections of Federal Rules of Civil Procedure (FRCP) 26(b)(2) clearly indicate, there are a host of factors that come into play when making and responding to a discovery request Suf ce it to say that the common law duty to preserve evidence that may be relevant to pending or threatened litigation provides fertile ground for the requesting side to seek to preserve and discover evidence through preservation orders, motions to compel, motions for sanctions, and so on This places a burden on the responding side, but respondents can attack the request on several fronts, such as relevancy, unreasonably cumulative or duplicative, overly broad, and unduly burdensome Oftentimes, this leads to legal haggling that can take weeks, months, or years to play out However, the courts are becoming increasingly sophisticated in dealing with electronic discovery requests and disputes As a practical matter, there is broad consensus that the preservation and production of electronic data and documents should be discussed by the parties, and agreements reached to the extent possible, during their conference under Rule 26(f), if not sooner10 One of the key issues being addressed in recent cases involving digital evidence regards the question of cost shifting; which party should bear the expenses associated with various aspects of the electronic discovery process As United States District Judge Shira A Scheindlin recently wrote in Zubulake v UBS Warburg LLC, 2003 US Dist LEXIS 12643 (SDNY July 24, 2003), the presumption is that the responding party must bear the expense of complying with discovery requests, and requests that run afoul of the Rule 26(b)(2) proportionality test may subject the requesting party to protective orders under Rule 26(c), including orders conditioning discovery on the requesting party s payment of the costs of discovery A court will order such a costshifting protective order only on a motion of the responding party to a discovery request, and for good cause shown11 In Zubulake, Judge Scheindlin distinguished accessible electronic data from
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The Advisory Committee Notes for the 1970 amendments to the Federal Rules of Civil Procedure re ect the inclusive nature of the term document: The inclusive description of documents is revised according with changing technology It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only from detection devices, and that when data can, as a practical matter, be made usable by the discovering party only through the respondent s devices, respondent may be required to use his devices to translate the data into usable form 7 Anti-Monopoly, Inc v Hasbro, Inc, 94 CIV 2120, 1995 WL 649934, at *2 (SDNY Nov 3, 1995) 8 Bills v Connect Corp, 108 FRD 459 (CD Utah 1985) 9 Cf Simon Property Group L P v my Simon, 194 FRD 639, 640 (SD Ind 2000) 10 Observations on The Sedona Principles, John L Carroll and Kenneth J Withers, www thesedonaconferenceorg/misc les/carroll/download 11 Zubulake v UBS Warburg LLC, 2003 US Dist LEXIS 12643 (SDNY July 24, 2003), also quoting Oppenheimer Fund, Inc v Sanders, 437 US 340, 358 (1978)
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