Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

تمرين 16

Before the computer age, discovery involved searching through paper records-physical evidence. Today, less than 0.5 percent of new information is created on paper. Instead of sending letters and memos, for example, people send e-mails- almost 600 billion of them annually in the United States. The all-inclusive nature of electronic information means that electronic discovery (e-discovery) now plays an important role in almost every business lawsuit.
Changes in the Federal Rules of Civil Procedure
As e-discovery has become ubiquitous, the Federal Rules of Civil Procedure (FRCP) have changed to encompass it. Amended Section 26(f) of the FRCP, for example, requires that the parties confer about "preserving discoverable information" and discuss "any issues relating to... discovery of electronically stored information, including the electronic forms in which it should be produced."
The most recent amendment to Section 34(a) of the FRCP expressly permits one party to a lawsuit to request that the other produce "electronically stored information- including... data compilation stored in any medium from which information can be obtained." The new rule has put in place a twotiered process for discovery of electronically stored information. Relevant and nonprivileged information that is reasonably accessible is discoverable as a matter of right. Discovery of less accessible- and therefore more costly to obtain- electronic data may or may not be allowed by the court. The problem of the costs of e-discovery is discussed further below.
The Ameriwood Three-Step Process
The new federal rules were applied in Ameriwood Industries, Inc. v. Liberman, a major case involving e-discovery in which the court developed a three-step procedure for obtaining electronic data. a In the first step, imaging, mirror images of a party's hard drives can be required. The second step involves recovering available word-processing documents, e-mails, PowerPoint presentations, spreadsheets, and other files. The final step is full disclosure in which a party sends the other party all responsive and nonprivileged documents and information obtained in the previous two steps.
a. 2007 WL 685623 (E.D.Mo. 2007).
Limitations on E-Discovery and Cost-Shifting
Complying with requests for electronically discoverable information can cost hundreds of thousands, if not millions, of dollars, especially if a party is a large corporation with thousands of employees creating millions of electronic documents. Consequently, there is a trend toward limiting e-discovery. Under the FRCP, a court can limit electronic discovery (1) when it would be unreasonably cumulative or duplicative, (2) when the requesting party has already had ample opportunity during discovery to obtain the information, or (3) when the burden or expense outweighs the likely benefit.
Many courts are allowing responding parties to object to e-discovery requests on the ground that complying with the request would cause an undue financial burden. In a suit between E*Trade and Deutsche Bank, for example, the court denied E*Trade's request that the defendant produce its hard drives because doing so would create an undue burden. b
[b. E*Trade Securities, LLC v. Deutsche Bank A.G., 230 F.R.D. 582 (D.Minn. 2005). This is a Federal Rules Decision not designated for publication in the Federal Supplement, citing Zubulake v. UBS Warburg, LLC, 2003 WL 21087884 (S.D.N.Y. 2003).]
In addition, sometimes when a court finds that producing the requested information would create an undue financial burden, the court orders the party to comply but shifts the cost to the requesting party (usually the plaintiff). A major case in this area involved Rowe Entertainment and the William Morris Agency. When the e-discovery costs were estimated to be as high as $9 million, the court determined that cost-shifting was warranted. c In deciding whether to order costshifting, courts increasingly take into account the amount in controversy and each party's ability to pay. Sometimes, a court may require the responding party to restore and produce representative documents from a small sample of the requested medium to verify the relevance of the data before the party incurs significant expenses. d
[c. Rowe Entertainment, Inc., v. William Morris Agency, Inc., 2002 WL 975713 (S.D.N.Y. 2002).]
[d. See, for example, Quinby v. West LBAG, 2006 WL 2597900 (S.D.N.Y. 2006).]
IMPLICATIONS FOR THE BUSINESS PERSON
1. Whenever there is a "reasonable anticipation of litigation," all the relevant documents must be preserved. Preserving data can be a challenge, particularly for large corporations that have electronic data scattered across multiple networks, servers, desktops, laptops, handheld devices, and even home computers.
2. Even though an e-mail is deleted, it is not necessarily eliminated from one's hard drive, unless it is completely overwritten by new data. Thus, businesspersons should be aware that their hard drives can contain information they presumed no longer existed.
Given the significant and often burdensome costs associated with electronic discovery, should courts consider cost-shifting in every case involving electronic discovery Why or why not