DIGITAL DISCOVERY - PARTICIPANT RESPONSES SUMMARY

Below is a sample of a few major concerns that seem to flow throughout the participant responses. The summary is followed by a compilation of the responses received as of the planning meeting, divided by topic.

I. Questions and Problems
- Costs
- The Judiciary: Court-Sponsored Resolution/Balancing Tests
- Federal Rules of Procedure/Legal Doctrine
- International Discovery
- Scope of Digital Discovery/Data Retention and Preservation
- Technical Limitations of Lawyers/Evidence Authentication
- Privacy Concerns/Attorney-Client Privilege
II. What is Really at Stake
III. Hypotheticals
IV. Stories
- Attorney-Client Privilege
- Technical Issues
- Privacy
- Scope of Discovery
V. Discovery of Electronic Evidence
- Problems
- Solutions

I. Cost of Digital Discovery

Respondents, both practicing attorneys and the judiciary, seemed concerned with costs of digital discovery in terms of time and money.

Practitioners
- Who should pay the expenses, including attorney fees to redact privileged information from email?
Judiciary:
·- What are the specific costs "in dollars and man-hours" of discovery, about ways to reduce costs, and whether "digital discovery has made discovery more or less cost effective?"
·- How do courts resolve disputes when the party resisting discovery says compliance would put them in bankruptcy?

II. What is Discoverable/Scope of Digital Discovery

Respondents asked questions such as:
- Once request is served, exactly what aspects of digital data must parties preserve (all data from that point forward?)
- Are both private and personal data open to discovery on an employer's server? What data retention policy should employers adopt?
- What responsibility is there to restore deleted emails and "deleted drafts" in responding to document production?
- One respondent (Vincent Polley of Schlumberger) said the sheer magnitude of a worst-case scenario discovery request is immense, particularly for large multinational corporations. He fears such discovery could bring such a corporation "to its knees" and questions how to respond to such request and what is a reasonable policy.

III. Technical Limitations of Lawyers
- Are lawyers capable of asking the right questions to authenticate documents (to ensure they have not been changed)?
- If clients are writing and deleting emails, are lawyers supposed to keep track of this for production, and if so, how?

COMPILATION OF RESPONSES

QUESTIONS AND PROBLEMS

COSTS:

James Johnson (Procter & Gamble):
The biggest issue in digital discovery is burden, in my view. I think it's necessary, however, to properly define the nature of that problem. I describe this as "the last 1% problem."

In many cases digital discovery can actually be easier and more cost-efficient than paper discovery. Information is more directly accessible, search engines can be put on literally thousands of documents to identify those which may be relevant, and the product itself comes out in a digital format which is much easier to work with. It is the last 1% where the problems begin to build.

The technical people are better able to explain this, but requiring search and analysis of thousands of backup tapes, identifying all digital "packets" of information on a system and, of course, the whole process of "undeleting" deleted documents are a few examples of that last 1%.

It should also be made clear that the issue is not whether a party should have access to digital discovery. We/they have had such access since companies started using computers, and surely litigants have a right to this information and data. But at some point the benefit/cost equation gets completely out of whack.

I would suggest the technical members of the panel describe some of the "cost" side of the equation that may not be obvious to the casual observer. For example, placing search engines on large data bases can consume considerable capacity, I understand. There is a long list of these kinds of hidden costs. I think it would be very useful to bring these out in the open.

All of this leads to the fundamental question whether special rules should apply to the last 1% and, if so, what are they?

Rich (superior court):
I need to know what the cost of discovery is in dollars and man-hours as to specific tasks in as much specificity and detail as possible. If a price list/task cannot be provided I would like a range of examples of tasks performed and the costs to the parties. I would also like some analysis of how costs could be reduced. I would like examples of how digital discovery has made discovery more or less cost effective.

Henry Alsobrook (Adams and Reese):
The broad Request for Production to a client for all e-mails relating to a particular product. The time and expense necessary to reply. Should the requesting party be required to pay the expenses including the attorney fees to redact privileged information ?

Christopher Angius (Perkins Coie):
The enormous cost of responding to broadly-worded discovery requests for digital information tilts the litigation playing field against computer-dependent organizations.

Deborah Birnbach (Testa, Hurwitz & Thibeault, LLP):
How do we best protect clients from electronic discovery that is overly broad and tremendously expensive, e.g., producing tens of thousands of e-mail messages, while courts are reluctant to limit discovery? Courts are also reluctant to enforce proposals for litigants to share such expenses. This problem is exacerbated when the case contains frivolous claims or by an inbalance in the number of electronic documents each litigant has. Cases often settle because the expense of litigating has risen exponentially due to electronic discovery, and judges liberally interpret discovery rules for, among other reasons, encouraging settlement.

Joseph Parker (Taft, Stettinius & Hollister):
Is there emperical data that electronic discovery is more problematic or more expensive than traditional paper discovery?

Louis LaCour (Adams and Reese):
Under what circumstances does the requesting party have to shoulder the expense of recovering archived digital data?

Mike Withrow (Procter & Gamble Co.):
The overall burden, particularly to large global corporations, from broad electronic discovery requests. The "scope" issue must be addressed head-on and this must be done on a consistent basis throughout the country (e.g., one court acting reasonably is offset by another court not exercising its gatekeeping duties).

THE JUDICIARY: COURT-SPONSORED RESOLUTION/BALANCING TESTS

Rich (superior court):
How have courts resolved disputes when the side seeking discovery says just press the "right" button and the other side says compliance with the request will put us in bankruptcy?

James Garrity (Florida Office of the Attorney General):
One concern is the seeming ease with which adversaries can persuade courts to preclude or limit digital discovery. There remains in many courts a lingering feeling that to seek digital discovery is to intrude where one doesn't belong. The problem seems more prevalent in state courts, but can be found in federal courts as well. Mostly, there seems an underlying perception, off which opposing lawyers feed, that digital discovery is an unnecessary nuisance, is an extravagance, or is a tool of oppression.

Digital discovery can sometimes prove to be less of a headache if the proponent serves interrogatories and document requests specifically addressed to digital discovery (e.g., "Plaintiff's First Request For Production of Digital Evidence") This sharpens the focus of both the court and the adversary on what is to be produced and can minimize game-playing

John Carroll (U.S.D.C.(M.D.Al)):
From the standpoint of the judiciary, there are two issues that need to be addressed- education and the evolution of procedural rules. Most judges do not have the level of technical expertise to understand the complexities of digital discovery. Thus one important facet of any activity is judicial education - providing judges with the knowledge and resources they need to rule intelligently in digital discovery matters. The second important facet has to do with the rules of procedure. If the present rules are adequate, we need to explain to judges how those rules apply in the digital discovery area. If the rules are inadequate then changes must be made.

James McCrystal (Brzytwa Quick & McCrystal):
How to educate the judiciary about the differences between traditional paper searches and electronic searches for discovery materials. The knee jerk attitude that "its easy for me (says the judge)to do a word search on my desk top computer, so what is the problem with letting their expert sit at one of your computers to run his searches. After all, it won't cost you anything, your opponent is paying the expert for his time, not you"

FEDERAL RULES OF CIVIL PROCEDURE/LEGAL DOCTRINE

Kenneth Withers (Federal Judicial Center):
Does the advent of computer-based discovery raise issues that need to be addressed by changes in the Federal Rules of Civil Procedure or Federal Rules of Evidence, or are the problems and opportunities presented by computer-based discovery best processed through client/counsel/judicial education, and the process of adjustment to new media?

James McCrystal (Brzytwa Quick & McCrystal):
The Federal Rules of Civil Procedure are being or have been amended to limit the time of depositions, the number of depositions and the number of interrogatories but nothing has been done to set meaningful limits on document production requests. We need to get control of this problem before it becomes the Side Show that takes over the Big Top.

Anonymous submission: What rules should be adopted with respect to the question of the discovery of documents that are encrypted? Can/should a private key be subpoenaed in a civil case? In a criminal case?

Christopher Angius (Perkins Coie):
The Federal Judicial Center needs to form a task force to develope guidelines for litigants and the courts when propounding digital discovery requests and adjudicating disputes arising from such discovery.

Joseph Parker (Taft, Stettinius & Hollister):
A critical question posed is whether by rule or decisions a safe harbor can be created so that institutions can have a rational retention policy.

James Garrity (Florida Office of the Attorney General:
The terminology of the rules could be changed to reflect changes in technology. Although you can't find a "phono-record" in most music stores, you can still find them in F.R.C.P. 34(a). None of the general federal discovery rules, rules 26 through 37, even refers to computerized or digital evidence. The committee notes address this, but the committee notes are, well, just that and nothing more.

Benjamin Reeve:
Problem, more than a question: It is my view that digital recordings and other retained "semi-affixed" or "loosely affixed" copies of informational things are created and maintained substantially differently than non-digital recordings. It is therefore also my view that the discovery rules should also be substantially different. For example, I think certain privileges should obtain based upon the existence of circumstances tantamount to compulsion in the provision of certain information. Just as we treat "adhesive" contracts differently than we treat "negotiatied" contracts, I think we ought to treat adhesively-provided" information (which tends to be "digitally" recorded and encoded) differently than information provided in less forced condtions. For a second example, becuase digital information is so much more readily copied and transmitted, I think we should create certain rights in the provider that "follow" the information provided, and that discovery should meaningfully be subject to them. Comes the question: How is this quite proper, but substantantively different set of rules to be created an implemeneted?

Jay Bregman (Keble College, Oxford):
How will digital documents affect the so-called "best-evidence" rule? The hearsay rule?

Alfred W. Cortese, Jr. (Cortese PLLC):
What further amendments to the Federal Rules of Civil Procedure should be considered to reduce the costs and burdens of digital discovery and to increase its effectiveness?

Anonymous:
Will there be standard discovery for mass torts as opposed to individual tort actions?

John Carroll (U.S.D.C.(M.D.Al)): Whether the present rules of civil procedure provide sufficient tools for judges to manage digital discovery matters?

INTERNATIONAL DISCOVERY

Vincent Polley (Schlumberger):
The international dimension -- to what extent can a U.S. discovery request extend to laptops, desktops, and servers located outside of the U.S., and owned by affiliates (not subsidiaries) of the U.S. litigation party?

Lynne Miller (Procter & Gamble Co.):
Are there specific privacy considerations that apply to emails and other electronic documents of corporate defendant employees in the EU?

SCOPE OF DIGITAL DISCOVERY/DATA RETENTION AND PRESERVATION

Anonymous Submission:
Forget about "existing" e-mail for the moment. Once litigation starts, or a document request is served, does a party have to preserve, print and produce every e-mail which is thereafter created having anything to do with the case? If so, how can a company possibly locate, preserve, store or print and product all such records? Or will it be recognized that only records which are "saved" in some way need to be preserved and produced, not the instantaneous messages which often have very brief life spans (some times one minute or less)?

Anonymous Submission:
To what extent are email records (both content and transaction records) discoverable on an employer's server? Are all records discoverable or only those that have a reasonable relationship to the employers' mission? If the answer to the question is all emails (personal as well as business) are discoverable, then what type of record retention policy should the corporation adopt?

Anonymous Submission:
What responsibility does a company have to restore deleted e-mails or other deleted files in responding to a document production?

Lynne (Proctor & Gamble Co.):
When is it necessary to implement electronic document preservation efforts? When a complaint is filed and served? When a notice of claim is received? And what is the extent of those preservation efforts? Is it necessary to preserve all backup tapes of all containing all computer applications? What protections are offered by a corporate electronic document retention program?

Under what circumstances are parties required to restore "deleted" email messages and "deleted draft" documents? Are corporate defendants required to produce employees' home computer hard drives during litigation? What defenses are available to the employees?

Eoghan Casey (Yale University):
If we are required to provide "all e-mail messages related to X", are we just required to turn over messages that we know about or are we required to perform an exhaustive search of workstations, servers, backup systems, etc? Also, if a message is encrypted and we do not know what it contains, are we required to pry the message open to determine if it is discoverable?

Sidney Kanazawa (Pillsbury Madison & Sutro):
In responding to litigation discovery, to what degree must parties and courts preserve, produce, sort through, and evaluate the vast proliferation of electronic communications (from word processors and their multiple drafts to email, voicemail, CAD drawing systems, electronic spreadsheets, and electronic modeling) that are not indexed in the neat categories of written discovery requests?

Sidney Kanazawa (Pillsbury Madison & Sutro):
In the electronic world, the term document is used as a metaphor to help us transition from paper to computer based technology. In fact, a "document" can be a set of algorithms that have infinite permutations. For example, most products are designed on CAD systems today. There is no paper. You can ask the system to give you an infinite number of views of the product. When asked for all documents relating to a product, must a manufacturer give its proprietary CAD file or can it simply print out a few relevant views or ask an opponent to identify a few relevant views for printout. Should drafts be required for production? Systems today can be tapped for earlier versions but should parties be required to shoulder the burden of this horrendous expense. There may be embarrassing revelations within those drafts but if they were never sent, do we want those earlier concepts to tip the balance of justice?

Lawrence Solum (Loyola Law School):
What legal duties are there to preserve digital evidence that would otherwise be destroyed by the default operations of software? Mike

Withrow (Procter & Gamble Co.):
Given that e-mail is much like a telephone calls or personal chats by the water fountain (not necessarily associated with business issues), it is disturbing to me that unlimited discovery of e-mail is being ordered by some courts. These discovery orders have gone so far as to allow "re-creation" of what were thought to be deleted and discarded e-mail messages.

TECHNICAL LIMITATIONS OF LAWYERS/EVIDENCE AUTHENTICATION

James Garrity (Florida Office of the Attorney General):
The retention of an expert at the outset of a case in which digital discovery is expected to play a large role is a must. Such experts can help craft thoughtful discovery plans and requests that are more likely to pass muster with a court.

Liam Connelly (Lex Research):
Authentication of the record. It is my submission that lawyers are not adequitly informed on what questions to ask. The key issue is determining the evidence required to prove the document has not been changed.

Avniye Tansug (HDD/ IPRA):
The law must not run after the technology i.e. the real life. Since law supposed to bring order into life, even in an artistic way -remembering Roman Law- we must find a way to be in front of the real life or at least in a side by side position. One of the practical ways may be to start new departments by cooperating the communication technology depts in the universities while running this sort of crush-education programs such as Berkman's... Being a communication consultant and a former lawyer who's been trying to learn what's happenning around the cyber world, I must admit that I learned lots of thing through this site.

PRIVACY CONCERNS/ATTORNEY-CLIENT PRIVILEGE

Tuyet A. N. Tran (New York University):
How does an average user safeguard her/is privacy while using various digital media as a matter of course during the day. Admittedly, this is a very broad question but, how do the panelists define the elusive boundary of private vs. public (corporation or government) digital signals. Echelon was developed to perform such monitoring tasks, ostensibly to protect national interests. How is monitoring digital signals differ in concepts from some governmental officials routinely come into randomly selected homes just to look around. How would the panelists propose to address the fluid and dynamic changes of technology that are subjected to current body of rules?

Bryan Neft (Bower Greer & Panzarella, PC):
My question is really two parts. How do we ensure that a party which requests electronic data and further requests production of the actual computer to reconstruct deleted materials, only obtains those materials responsive to the request, and nothing beyond that scope? Also, how do we ensure that all documents recreated are ultimately deleted and wiped from computers which have processed or retrieved such discovery?

Bert Pogrebin (Rains & Pogrebin, P.C.):
How to protect the attorney-client privileged communications. Or does the new technology mean that such communications should not be communicated electronically?

James Garrity (Florida Office of the Attorney General):
The fact that important digital discovery may be in the hands of not the adversary but a third party (e.g., an ISP like AOL) in some other jurisdiction needs thought.

Avniye Tansug (HDD/ IPRA):
I think the most serious question here is the concept of "privacy" itself... Could the frames of this concept really be defined practically? The matter of "protection" comes after I believe... To what extent privacy is something sacrified? To what extent the discovery procedures may be extended? This is crucial. Because once it is decided to be "discovered", it seems that those frames could easily be broken by; * not so well technologically equipped law related people, even unintendedly, * techies, consciously, * other reasons (which I can not visualise right now)...

Joe Valentine (Wheeler Trigg & Kennedy):
I am concerned about attempts by discovering parties to obtain access to an opponnt's computer terminals (either directly or through an assigned employee of the opponetn) in order to conduct on-the-spot, ad hoc searches. I believe that such procedures fundamentally violate the applicable discovery rules and can raise constitutional issues of invasion of privacy, among other things.

II. WHAT IS REALLY AT STAKE:

Anonymous:
I'd like to know whether panelists believe that "digital discovery" is qualitatively different from traditional discovery, or if the differences are merely quantitative. If it is qualitatively different, in what ways?

Benjamin Reeve:
Digital discovery is one name for it, but the issue has really to do with rights in informational things generally, rights in databases as and when assembled, rights in records inevitably created by ordering a part for a machine or visiting a doctor. It is not really about what happens when there is a lawsuit, and one party wants discovery. Those principles will have to come from ideas and principles deeper in the structure of the law pertaining to informational things.

Sidney Kanazawa (Pillsbury Madison & Sutro):
In recent years, discovery has not been a tool for the gathering of information but instead it has become a weapon of war used to pummel an opponent to an economic surrender or surround an opponent with unanswerable adverse suggestion and innuendo arising from the failure to produce something in discovery. Electronic discovery only enhances this use of discovery. The sheer volume of items makes review of electronic discovery economically burdensome. And the opportunity for innocent missing items is exponentially increased.

Trials are not about objective truth or reality. It is absurd to think that 12 citizens sitting passively can find a single objective truth that has eluded the parties and their respective attorneys for years before trial. Trials are about deciding who is good and who is bad -- as between the parties before the court. It is a gut feeling about right and wrong dictated by 3 factors -- knowledge, power & ability, and intention & diligence. What did the parties know? What could they have done to avoid this problem? What was their intention? Were they diligent in fulfilling a good intention or were they only half-hearted in their effort? Regardless of the law, jury research tells us those are the questions jurors use to reach a just result.

Unfortunately, these factors could be used to argue for maximum electronic discovery. But this must be balanced against the speed of our internet world. Everything is moving faster today. Ironically, however, in the horse and buggy days of the 1800's, justice was faster than it is today. Final decisions by our highest courts are today normally rendered years (5-20 years) after the dispute provoking the litigation arose. By contrast, in the 1800's, the highest courts were considering disputes and issuing final judicial rulings on matters that arose MONTHS earlier. True, disputes were simpler. But we cannot ignore the fact that slow -- precise -- justice could render our judicial system irrelevant in the fast paced world of today. The rise in private mediation and arbitration is not an accident. It is a response to the need for quicker justice.

Since justice as we know it is not about determining objective truth but instead a gut assessment of right and wrong based on knowledge and evidence of hiding (almost every big verdict has some element of hiding by the defendant involved), we need to balance the burdens of discovery to not create injustice where none exists -- i.e. not create opportunities for opponents to use the economic and emotional weapons of discovery to slay an opponent without a legitimate basis in fact.

III. HYPOTHETICALS:

Kenneth Withers (Federal Judicial Center):
Several months ago, the number of email messages transmitted on a daily basis in the United States surpassed the number of telephone calls placed. Email, as opposed to telephone conversation, creates a written record. Each email message transmitted creates several duplicates as part of the transmission process, many of which are captured and stored on a more-or-less permanent basis in large, unstructured directories or files. At the same time, most corporations have restructured themselves in the process of adopting computer-mediated communications and business processes, to eliminate the traditional controls on record proliferation, such as records management procedures, central filing, and secretarial support. It seems as though this is a cultural problem outside the ambit of the courts to address, except perhaps to construct a "risk and reward" system to encourage the adoption of electronic records management and internal controls by businesses, institutions, and government.

Anonymous submission:
Company has been sued and has already responded to document request, including some effort to locate and produce existing e-mails on the subject of the case. After the production is made, employee A sends a mail to employee B discussing something pertinent to the case. Employee B responds and deletes A's message. A replies and deletes B's message. And so forth. Are the lawyers supposed to even know of those messages, much less find them, save them and produce them?

Vincent Polley (Schlumberger):
The sheer magnitude of a possible worst-case scenario is immense. Records include email and electronic documents, that travel around the world to employees of affiliates (and to contractors), that reside on laptops that move with re-located employees to new jurisdictions, that are (or may be) backed-up either directly or accidentally (e.g., when a mail server is backed up before it's delivered stored, incoming e-mail), and that may be forwarded as-is or may contain changes, annotations, and comments. A broadly enforced discovery request could bring a multinational to its knees -- reaching literally tens of thousands of computers, millions of terabytes of data, and thousands of individuals. What's are reasonable standards for multinationals to pursue? How to *IMPLEMENT* a reasonable policy? How to respond to an unreasonable discovery request?

Liam Connelly (Lex Research):
My hypothetical is based on Sabin Willets book "The Deal". In that book the story line developed when an electronic document was changed. The story shows how the changes to the e-doc were tracked. What rules can be put in place in order to determine if a document, which may have been subject to a hash encryption, was fiddled with just before it was printed? Do we need to be provided with both the hardcopy and edocs at discovery? It sounds a bit redundant. In the technological age we should be able to fully rely on the edoc. My concern is that there is still room to fiddle an edoc, do lawyers no enough to ask the right questions in discovery to fully determine the authenticity of the document. New Canadian federal evidence Act sections provide for affidavits from those who have knowledge of the edoc and the systems it comes from. These affidavits can be subject to cross examination. Do lawyers know enough to handle the technical questions required under the cross examination?

Jay Bregman (Keble College, Oxford):
Larry is an employee of a large research university which has a large, internally-managed email system. He has just discovered financial irregularities in the office in which he works, computing services. The information indicates that the director of the office has been engaged in shady dealings with private companies which violate both university policy and state and federal law. After questioning the director via email, he receives a directive (again via email) to "keep quiet." Larry prints a copy of this email for his records, but does not save a copy of the message locally. Larry attempts to report the incident further but is fired. He sues for wrongful termination. At trial, his lawyers seek to introduce the email as evidence. Mysteriously, all electronic copies of the message no longer exist. All that remains is a paper printout. The lawyer for the University objects to the introduction of such evidence. What ruling and why?

IV. STORIES

ATTORNEY-CLIENT PRIVILEGE

Henry Alsobrook (Adams and Reese):
Representing product manufacturers, I frequently receive Request for Production [of emails - which may require great effort/expense to redact privileged information]. Thus far there has been no solution except to file a Motion to Quash and take your chances on the Judge being educated enough to see the problem. State Court judges do not seem to grasp the enormity of the problem and are more likely to grant the plaintiff's Request.

Christopher Angius (Perkins Coie):
In a case involving allegations of securities fraud,a defense firm received a discovery request seeking the production of the hard drives from the computers of all lawyers who worked on a stock offering

TECHNICAL ISSUES

Anonymous submission: My favorite story about digital discovery is still the one that involved the Iran-Contra hearings. Oliver North learned the lessons between documents that were marked for deletion and documents which were completely erased.

PRIVACY

Bert Pogrebin (Rains & Pogrebin, P.C.): Client suspected that employee was spending time on her work station computer for personal business for majority of particular work day. When employee was questioned, she left work. Supervisor went into employees E-mail and foud that she had correspondence accepting a job elsewhere, that she had lied about the need for an emergency leave given her months earlier and her pending request for a leave was to give her time to try out her new job. Question was without notice that e-mail would be monitored, was the use of the discovered material a violation of Federal Law.

Jay Bregman (Keble College, Oxford): Dartmouth College was recently enveloped in a cheating scandal in an introductory computer science course. The professor issued a difficult assignment in which students were to program several lines of javascript. During the class period in which the assignment was handed out, the professor "unlocked" a portion of his website containing the answers to the assignment in an effort to explain how to arrive at the solution. Several students copied the URL and later accessed the site (which the professor forgot to re-protect for some time). Many students sought help from the teaching assistants. However, the difficulty of the problem was so great and the teacher's teaching so poor that when the TA's asked the professor for help, he simply handed them the solution on paper. They tried their best to help students complete the assignment.

After reading the solutions, the professor accused almost half the class (50+ students) of academic dishonesty. He claimed that those students either accessed the page shortly after class and copied the assignment or copied from one another. The professor requested the logfiles for his protected website to determine the exact computers around campus who had accessed the answers during the short period while they were unprotected. This request was granted, and these students, among others, were charged with plagarism and brought before the college judiciary body. The professor also requested access to every student's email account (which the college denied, citing personal privacy concerns). Some questions posed to the college judiciary were: Should the website logs be considered damning evidence of plagarism if they showed that a computer belonging to person x accessed the website improperly?

How can one distinguish students who cheated from those who simply sought help from the Teaching Assistants, who (not knowing how to do the assignment themselves) merely passed on the professor's answer? Further, some of the hits to the answer portion of the professor's website came from off-campus. Should the college be able to contact the ISP's of students living off campus to determine the names of students who accessed the site? Or is this "digital discovery" too destructive to personal privacy? In the actual case (written up in The Dartmouth as well as The Boston Globe), the charges were dropped for all students because the college judiciary committee found it impossible to determine who had cheated and who had obtained legitamate help from the TA's.

SCOPE OF DISCOVERY

Bryan Neft (Bower Greer & Panzarella, PC):
Recently, I had a case where the opposing party requested production of the computers of several executives of my client. In accordance with an agreement between the parties, the opposing party sent an "expert," if you could call him that, to retrieve any documentation responsive to the opposing parties discovery requests. However, there was no way to ascertain, except through the judgment of the expert, and without looking at the documentation, whether, in fact, such documentation was responsive. In addition, when all recovered electronic documentation was processed through the expert's computer, I was concerned that the processing left the documents on the expert's hard drive, even though he had agreed to place the documentation on a disk drive for me to review first. Therefore, I required the expert to delete all temporary files from his hard drive and to wipe the free space, to provide some measure of assurance that the expert would not walk away with either sensitive documentation or materials non-responsive to the request, prior to my being able to view the documents for responsiveness. My experience highlights the need for established rules to provide for destruction of all electronic records so that there is limited dissemination in connection with the case and to protect the party from whom discovery is sought. Also, because the expert in this case seemed somewhat inexperienced, should there be certain qualifications for computer experts who are retained to retrieve discoverable information from computer systems.

Joe Valentine (Wheeler Trigg & Kennedy):
I have represented parties in opposing discovery procedures in which a party seeks to gain access to an opponent's computer terminals and, at the terminal, to frame discovery requests "on the fly." I am aware that some corporations have stipulated (often under the gun of an unfavorable court order) to allow such discovery, although I don't know their resulting experiences. I have been involved in cases in which the court decided the dispute about the appropriateness of such procedures in different ways, although none of the courts gave any rationale for their conflicting decisions.

DISCOVERY OF ELECTRONIC EVIDENCE: PROBLEMS AND SOLUTIONS

PROBLEMS:

The Information Age:
The ever-expanding use of electronic communications combined with the ability to store massive quantities of such data has changed the landscape of discovery. Significant technical complexities create unique problems:

Burden: The enormous amount of information stored in electronic form can result in significant and unique burdens if it must be restored, reviewed or produced.

Cost: Costs increase by orders of magnitude depending on the type of media, the volume of data, the type of operating system, how the data is formatted, the condition of the media, and the amount of time for the search.

Business Disruption: Broad electronic discovery orders have the potential to cause significant business disruption if companies are forced to shut down, alter or otherwise disrupt data systems.

Preservation: Electronic data have raised unique and unsettled questions such as what preservation mechanisms must be put in place and when.

Privilege/Confidentiality/Privacy: Allowing broad access to computers and data files without proper consideration of non-discoverable content exposes privileged documents, trade secrets and other proprietary information to unnecessary disclosure.

SOLUTIONS:

Proposed Rules Changes:

In addition to stricter application of existing procedural rules governing electronic discovery, additional amendments should be considered:

Judge-vs.-Attorney Managed Discovery:
Adopt a rule that, recognizing the unique complexities, costs, and burdens of electronic discovery, requires such discovery to proceed only upon entry of a specifically tailored judicial order, based upon demonstrated, particularized need that substantially outweighs the costs and burdens of the discovery sought.

Presumptive Limits:
Adopt rules that create presumptive limits on how far back electronic searches can be ordered without good cause and that limit electronic searches only to relevant storage media, as opposed to broad, global searches of irrelevant data devices.

Cost-Bearing: Reconsider and revise the earlier proposed amendment on cost-bearing so that it acknowledges and specifically applies only to the unique burdens and costs associated with electronic discovery.

Other Comments: "Ranking" the above issues seems too arbitrary to be useful. All are important issues that need to be considered in analyzing the many problems presented by digital discovery and in devising practical solutions. Do you agree?