Electronic information presents numerous challenges and issues when it is sought by litigating parties in discovery. Amendments to the Federal Rules of Civil Procedure (the Rules) and changes to state law address how electronic documents must be handled during discovery. E-discovery presents special challenges because of the volume and transient nature of electronic documentation. The burden posed by this form of information has also led to rising litigation costs and increased disagreements between parties about the scope of e-discovery.

Duty to preserve. One of the core issues in e-discovery disputes focuses on the duty to preserve documents for litigation. It is ambiguous as to when the duty to preserve documentation first arises. Indeed, there is no conclusive rule about when this duty is triggered. The Federal courts have taken the stance that the duty to preserve becomes effective when litigation is initiated or is reasonably anticipated. But determining the meaning of “reasonable anticipation” of litigation in the absence of further instruction continues to leave litigants confused, thereby resulting in mishandled and lost electronic documents and sanctions for not properly preserving information.

Preserving the relevant documents. The second, and perhaps more complex matter with respect to e-discovery is understanding which documents must be preserved in a litigation hold for discovery. Electronic documentation poses a significant departure from traditional discovery because of the sheer volume of documents that are generated by a typical business. Litigants typically must set aside documents that are reasonably related to the pending litigation; when applied to electronic materials, litigants are typically compelled to include an immense amount of material even when they have little information about the scope of the litigation that they may encounter. A policy setting forth the minimum standard required to comply with this rule would help avoid the expense of amassing and preserving large amounts of unnecessary material and also preclude litigants from incurring fines for failure to include a single email in their search.

Keeping an eye on costs. The enormous expenses associated with discovery for electronic documentation demands that the parties approach this process with a sense of reasonableness and proportionality as set forth in the Rules. This means that document requests should be clear and reasonably related to the specifics of the matter so as not to force the opposing party to incur expenses that could outweigh the value of the litigation.

Contact Shane Coons at 949-333-0900 or visit his website at www.ShaneCoonsLaw.com to find out more about his practice.