WHAT SHOULD THE STANCE OF JUDGES BE TO THE PENETRATING NATURE OF DIGITAL DISCOVERY?

1. How can judges evaluate claims that discovery of electronic information is necessary? What showing should requestors have to make to pursue digital searches?
2. How can judges evaluate defendants' claims that discovery is too broad or expensive versus plaintiffs' claim that such discovery is essential to the case?
3. What case management orders would alleviate discovery problems without sacrificing the value of discovery of electronic information? What strategies have parties worked out?

CRITICAL QUESTIONS TO ESTABLISH FOUNDATION OF DEBATE:

1. The literature on civil discovery is strikingly sketchy on actual costs associated with discovery, either in lawyer fees or client costs. How do the costs of electronic discovery compare with the costs of paper discovery? Have computers made storage and retrieval cheaper and easier? Has this benefit been offset by the proliferation of documents and sources to be searched?
2. In a fluidly searchable world of digital evidence, are there logical bounds to the scope of a legally permitted search? Are there kinds of electronic records that should be presumptively in-bounds and out-of-bounds? For example, think of "deleted" e-mail.
3. What logic, law and economics should guide a corporate organism in determining its level of expenditure of resources on affirmatively destroying digital evidence of its past?
4. Are issues of digital discovery so technology-dependant, and is the pace of technological change so rapid, that lawmakers should hesitate to engage in a multi-year process of rulemaking to fix problems that may not exist by the time the rules can be enacted?