Computer-Based Discovery in Federal Civil Litigation.

摘要

Discovery is changing in response to the pervasive use of computers. More and more cases involve e-mail, word-processed documents, spreadsheets, and records of Internet activity. In some cases, computer-based discovery can be routine and uneventful. The parties may agree simply to exchange computer disks of documents instead of paper. In many cases, however, computer-based discovery generates disputes over the scope of disclosure, form of production, privilege, and alleged spoliation. The costs associated with computer-based discovery procedures can be extraordinary. In many of the reported cases on electronic discovery, failure of the attorneys to understand their own clients' computer systems, routines, capabilities, and limitations were at the heart of the problem. Early identification of potential discovery problems and early resolution of these matters may be the key to reducing costs and delay in cases involving computer based discovery. Part One of this Introduction briefly discusses some of the positive aspects of computer based discovery. Part Two explores the unique problems of computer-based discovery, and offers some discovery management suggestions to attorneys. Part Three focuses on the judicial role in managing computer-based discovery and preventing or resolving some of the more common disputes. Finally, Appendix A provides a checklist of computer based discovery considerations for a Rule 16(c) pretrial conference.