* United States District Judge, Southern District of New York.
** Law Clerk, Judge Shira A. Scheindlin (1996–1997); Associate, Gibson, Dunn & Crutcher (1997–1999); Deputy City Attorney, Office of the City Attorney of San Francisco (2000–present).
1 See Diamond v. Diehr, 450 U.S. 175, 194 n.1 (1981) (Stevens, J., dissenting) (describing first general purpose computer). One survey by a leading market research firm estimates that more than half of all American homes now have computers, as compared with 40% two years ago. See Mike Tonsing, Electronic Mail Is Ubiquitous And Its Consequences Are Enormous, Fed. Law., May 1999, at 56.
2 Bills v. Kennecott Corp., 108 F.R.D. 459, 461 (D. Utah 1985) (Greene, J.).
3 One writer noted that there were an estimated 50 million users of the Internet in 1996 and that the number of users is projected to rise to 200 million by the end of 1999. See Jack E. Brown, Obscenity, Anonymity and Database Protection: Emerging Internet Issues, Computer Law., Oct. 1997, at 1. Others predict the number of Internet users will rise to 320 million by 2002. See Daniel H. Rimer, Hambrecht & Quist, Critical Path: Capitalizing on the New E-mail Paradigm 3 (1999). Mr. Rimer also states that the number of e-mail mailboxes currently outnumbers users by a ratio of more than two to one and will continue to outnumber Internet users in the future. See id.; see also Donald J. Karl, State Regulation of Anonymous Internet Use After ACLU of Georgia v. Miller, 30 Ariz. St. L.J. 513, 513–14 (1998) (describing the growth of Internet use).
4 In May 1997, one commentator estimated that 30% of the information that goes into business computers never appears in paper form. See Susan J. Silvernail, Electronic Evidence: Discovery in the Computer Age, Ala. Law., May 1997, at 177; see also Paul Frisman, E-mail: Dial ‘E’ For ‘Evidence,’ N.J. L. J., Dec. 25, 1995, at 12.
5 Ms. Silvernail has estimated that 40 million e-mail users will send 60 billion messages by 2000. See Silvernail, supra note 4, at 181. Time magazine estimated that 2.6 trillion e-mailed messages passed through U.S.-based computer networks in 1997 and that the number would increase to 6.6 trillion by 2000. See S.C. Gwynne & John F. Dickerson, Lost In The E-mail, Time, Apr. 21, 1997, at 88.
6 See John Rothchild, Protecting The Digital Consumer: The Limits Of Cyberspace Utopianism, 74 Ind. L.J. 893, 895 (citing Bill Burnham, The Electronic Commerce Report 238 (1997) and Department of Commerce, The Emerging Digital Economy 38 (1998)). The New York Times reports Internet consumer sales are predicted to jump from $3.9 billion in 1998 to $108 billion in 2003. See Leslie Kaufman, Amazon.com Plans A Transformation To Internet Bazaar, N. Y. Times, Sept. 30, 1999, at A1.
7 The proliferation of computer technology has also raised difficult issues in the context of criminal law. See, e.g., United States v. Reyes, 922 F. Supp. 818, 832 (S.D.N.Y. 1996) (defendant moved to suppress telephone numbers obtained by government agents from the electronic data storage unit on his paging device); United States v. Paredes, 950 F. Supp. 584, 586, 590 (S.D.N.Y. 1996) (dismissing murder-for-hire indictment where sole basis for jurisdiction was intrastate use of tristate paging system); People v. Jovanovic, 700 N.Y.S.2d 156, 159 (App. Div. 1999) (reversing conviction for kidnapping, sexual abuse and assault and ordering a new trial where trial court improperly excluded e-mailed messages from complainant to defendant indicating interest in sadomasochism).
8 “Computers have become so commonplace that most court battles now involve discovery of some type of computer-stored information.” Bills, 108 F.R.D. at 462.
9 See J. Gregory Whitehair & Kimberly Koontz, Discoverability Of Electronic Data, Colo. Law., Oct. 1998, at 45; see also infra Part I.C.1 (discussing recoverable deleted files).
10 See Heidi L. McNeil & Robert M. Kort, Discovery of E-mail, Or. St. B. Bull., Dec. 1995, at 21.
11 See id.
12 See, e.g., James V. Grimaldi, Microsoft Trial--Gates’ Spat With Intel Is Revealed By E-mail, Seattle Times, June 23, 1999, at E1. Other cases also have involved incriminating e-mail. See, e.g., Vizcaino v. Microsoft Corp., 120 F.3d 1006, 1019 (9th Cir. 1997) (O’Scannlain, J., concurring in part) (noting, in an ERISA decision, that freelancers are treated differently from employees because, among other things, freelancers had different e-mail addresses); Meloff v. New York Life Ins. Co., 51 F.3d 372, 373, 376 (2d Cir. 1995) (denying summary judgment in libel suit based in part on e-mail evidence); Owens v. Morgan Stanley & Co., No. 96 Civ. 9747, 1997 WL 793004 (S.D.N.Y. Dec. 24, 1997) (involving suit by two African-American employees against a large investment banking firm that allegedly circulated racist e-mail message among white employees); Angleton v. Beech Aircraft Corp., No. 96–1027-JTM, 1997 WL 446262, at *2 (D. Kan. July 30, 1997) (involving e-mail sent by plaintiff to supervisor).
13 We refer to the Federal Rules of Civil Procedure as the “Rules.”
14 Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 1995 WL 649934, at *2 (S.D.N.Y. Nov. 3, 1995); see also In re Brand Name Prescription Drugs Antitrust Litig., Nos. 94 C 897 MDL 997, 1995 WL 360526, at *1 (N.D. Ill. June 15, 1995); Bills, 108 F.R.D. at 461. Commentators frequently quote Hasbro with approval. See, e.g., Joseph P. Zammit & Lynette A. Herscha, Litigation Issues In A Cyber World, in Practising Law Institute, 18th Annual Institution on Computer Law 122 (1998). These cases specifically dealt with program files or e-mail, and not the newer forms of electronic evidence such as cookies, temporary files, residual data or Web caches.
15 Hearings Before the Advisory Committe on Rules of Civil Procedure, (Baltimore, MD) (Dec. 7, 1998) (testimony of Allen D. Black).
16 See infra Part I.C.2. (describing these common types of electronic evidence).
17 See infra Part II.B. (describing Rule 34 in greater detail).
18 By focusing on Rule 34, this Article does not mean to imply that the other Rules are of no concern. To the contrary, the same definitional and logistical problems discussed below regarding Rule 34 present themselves under Rule 30(b)(5), which governs document productions at party depositions, and Rule 45, which permits parties to require non-parties to produce “designated books, documents or tangible things in the possession, custody or control” of those non-parties. See FED. R. CIV. P. 30(b)(5), 45(a)(1).
19 For more future-looking and radical proposals for altering the Rules to incorporate modern technology for purposes of conducting more efficient trials, see generally Paul D. Carrington, Virtual Civil Litigation: A Visit To John Bunyan’s Celestial City, 98 Colum. L. Rev. 1516, 1524–34 (1998) (proposing, among other things, virtual trials and virtual appellate review). Although Professor Carrington’s work does not touch in any detail on discovery of electronic data, it does provide a vision of how a more technology-oriented civil justice system might operate.
20 Michael R. Overly, Overly On Electronic Evidence In California § 1.01, at 1–2 (1999).
21 Rule 27(a)(3) offers a method of obtaining inspection of documents and things for use in a future action. See Fed. R. Civ. P. R. 27(a)(3). The rule was intended “to apply to situations where, for one reason or another, testimony might be lost to a prospective litigant unless take[n] immediately, without waiting until after a suit or other legal proceeding is commenced.” In re Ferkauf, 3 F.R.D. 89, 91 (S.D.N.Y. 1943). Similarly, Rule 27(b) provides a procedure for perpetuating testimony while a case is on appeal, for use in the event of further proceedings in the district court. See Fed. R. Civ. P. 27(b); see generally 8 Charles Alan Wright et al., Federal Practice and Procedure: Civil 2d §§ 2071–76 (1994) (discussing Rule 27 in detail).
22 See Fed. R. Civ. P. 26(b)(1). The Advisory Committee on Civil Rules has published an amendment that will alter the wording of Rule 26(b)(1) from “relevant to the subject matter of a lawsuit” to “any matter, not privileged, that is relevant to the claim or defense of any party” but will allow discovery of matters falling within the former category for good cause shown. If approved by the Supreme Court and not rejected by Congress, these proposed changes will take effect at the end of 2000.
23 “Electronically-stored” includes all information stored digitally, optically or in analogue form.
24 As explained below in Part I.C.1., a computer creates a broad range of electronically-stored information without a user’s knowledge. We intend the term “electronic document” to exclude such information.
25 See Black’s Law Dictionary 481 (6th ed. 1990) (citing Strico v. Cotto, 324 N.Y.S.2d 483, 486 (1971)). This definition would include pictures or tapes. We note, however, that at least one lay dictionary defines the term “document” to mean simply “a writing conveying meaning.” See Merriam-Webster’s Collegiate Dictionary 342 (10th ed. 1993).
26 Some data is stored in analogue form, using continuous variable attributes such as voltages or pressure, instead of binary numbers. This type of storage is not discussed in detail in this Article.
27 See Ron White, How Computers Work 36 (1997) (“[A] computer is just a collection of On/Off switches.”).
28 See DNA Computing, PC Mag., Nov. 2, 1999, at 11; Madeleine Acey, Chemist Drives Gas Powered Computers, CMP TechWeb, Oct. 14, 1999, <http.//www.techweb.com/wire/story/ TWB19991014S0001>.
29 The chart below is simply an example of assigning numbers to letters. In fact, most computers use a standardized code called the American Standard Code for Information Interchange (“ASCII”) to assign numbers to represent the alphabet, digits 0 through 9, punctuation marks and other commonly-used typographical symbols.
30 Bytes (or groups of eight bits) are themselves made up of two units of four bits called nibbles. By using binary numerals, each nibble can store up to 16 different arrangements of bits—and thus can represent decimal numbers 1 through 16. A byte, therefore, can represent up to 256 different numbers. See Richard Rabkin, Biting Deeper Into The Apple’s Core 44, 46 (1985).
31 Metric prefixes are often used in this context. Thus, “64k” may be used to refer to 64 “kilobytes,” or 64,000 bits of information.
32 See Overly, supra note 20, §  1.01, at 1–3.
33 See infra Part III.C.6.
34 Examples of a personal electronic organizer are the popular Palm Pilot and Nino and their recent rival, the Visor; all are typically used to store information such as telephone numbers, calendar and scheduling information and travel expenses. The newer versions of the palm-sized computers are capable of running word processing programs, spreadsheets and Web browsers.
35 Microchips, or “integrated circuits,” and the information they store increasingly are integrated into everyday technology. For example, automobile air bag systems designed to inflate only in specific circumstances may record not only the time of an accident, but also the speed at which the car was traveling and the angle of impact.
36 For example, the following Web sites allow users to store personal information: www.i-drive.com; www.idrop.com; www.docspace.com; and www.filemonkey.com.
37 See Joan E. Feldman & Rodger I. Kohn, The Essentials Of Computer Discovery, in PRACTISING LAW INSTITUTE, Third Annual Internet Law Institute 51, 54 (1999).
38 An analogy would be removing someone’s house address from the phone book. The house still may be located if you know what it looks like, even if you do not know exactly where to look.
39 See Feldman & Kohn, supra note 37, at 55.
40 See Overly, supra note 20, § 2.12, at 2–18; see also supra note 5.
41 Several commentators have observed that many people express thoughts and make statements using e-mail that they would not otherwise put down in writing. See, e.g., United States v. Maxwell, 45 M.J. 406, 410, 412 (C.A.A.F. 1996) (involving Air Force Colonel accused of transmitting child pornography through graphic files attached to e-mailed messages); Owens v. Morgan Stanley & Co., No. 96 Civ. 9747, 1997 WL 793004 (S.D.N.Y. 1997) (involving suit by two African-American employees against large investment banking firm that allegedly circulated racist e-mail messages among white employees); Miller v. U.S.F.& G., No. 93-1968, 1994 WL 395718, at *2, 5 (D. Md. 1994) (involving suit against corporation by Human Resources Manager, claiming discrimination in discharge for participation with male co-workers in using numeric code system in e-mailed messages to refer to profanity); United States v. Charbonneau, 979 F. Supp. 1177, 1179 (S.D. Ohio 1977) (involving participant in America Online chat-room accused of sending e-mail messages containing graphic files of child pornography). Mr. Overly attributes this phenomenon to the ease and speed with which e-mail can be generated and sent, lending to “heat of the moment” messages, as well as the general (and incorrect) belief among e-mail users that once e-mailed messages are deleted they are gone forever. See OVERLY, supra note 20, § 2.12, at 2–18.
42 See Karen Donovan, E-Mails Helped Microsoft In Connecticut Victory, Nat’l L. J., Aug. 2, 1999, at A1 (e-mailed messages showing plaintiff deliberately extended litigation against Microsoft to inflict discovery costs in the hope of achieving a high settlement played central role in jury’s deliberations); see also supra notes 12–14 and accompanying text.
43 See Rothchild, supra note 6, at 927. The author notes, “It is likewise trivially easy for the owner of a Web site to disguise her identity.” Id. at 928.
44 In ACLU v. Miller, a district court struck down, on First Amendment grounds, a Georgia law prohibiting all electronic communications that did not truthfully identify the sender. See 977 F. Supp. 1228, 1230, 1232 (N.D. Ga. 1997). In reaching its decision, the court relied upon Supreme Court precedent recognizing a right to distribute pamphlets anonymously. See id. at 1232 (citing McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)).
45 See David G. Post, Pooling Intellectual Capital: Thoughts on Anonymity, Pseudonymity, and Limited Liability in Cyberspace, 1996 U. Chi. Legal F. 139, 167–69 (1996) (defending usefulness of anonymous remailers). See generally Developments in the Law--The Law of Cyberspace, 112 Harv. L. Rev. 1574, 1607–08 (1999) (describing anonymity of Internet and anonymous remailers).
46 See Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1044 (9th Cir. 1999) (describing the Internet and the World Wide Web); ACLU v. Reno, 929 F. Supp. 824, 836–38 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997) (providing an overview of the World Wide Web).
47 See Rothchild, supra note 6, at 900 (describing Web sites in greater detail).
48 See Overly, supra note 20, § 2.12[H], at 2–14. On larger networked systems, Internet caches may be stored locally on the hard drive of a specific workstation or at the server level.
49 See id. § 2.12[I], at 2–15.
50 See id. § 2.12[G], at 2–14.
51 See id. § 2.12[F], at 2–13 to 2–14.
52 Id. § 2.12[F], at 2-14.
53 See, e.g., Overly, supra note 20; Feldman & Kohn, supra note 37; Ronald L. Plesser & Emilio W. Cividanes, Discovery And Other Problems Related To Electronically Stored Data And Privacy, in Practicing Law Institute, Computer Software and the Internet 227 (1995); Zammit & Herscha, supra note 14, at 107; Matthew J. Bester, A Wreck On The Info-Bahn: Electronic Mail And The Destruction Of Evidence, 6 CommLaw Conspectus 75 (1998); Patrick R. Grady, Discovery Of Computer Stored Documents And Computer Based Litigation Support Systems: Why Give Up More Than Necessary, 14 J. Marshall J. Computer & Info. L. 523 (1996); Gregory S. Johnson, A Practitioner’s Overview Of Digital Discovery, 33 Gonz. L. Rev. 347 (1997–98); Susan E. Davis, Elementary Discovery, My Dear Watson: Today’s Evidence Comes In Bytes And Megabytes, Cal. Law., Mar. 1996, at 53; Debra S. Katz & Alan R. Kabat, Electronic Discovery In Employment Discrimination Cases, Trial, Dec. 1998, at 28; Joseph L. Kashi, How To Conduct On-Premises Discovery Of Computer Records, Law Prac. Mgmt., Mar. 1998, at 255; Peter V. Lacouture, Discovery And The Use Of Computer-Based Information In Litigation, R.I. B. J., Dec. 1996, at 9; Charles A. Lovell & Roger W. Holmes, The Dangers Of E-Mail: The Need For Electronic Data Retention Policies, R.I. B. J., Dec. 1995, at 7; Heidi L. McNeil & Robert M. Kort, Discovery Of E-Mail And Other Computerized Information, Ariz. Att’y, Apr. 1995, at 16; Heidi L. McNeil & Robert M. Kort, Electronic Mail And Other Computer Information Shouldn’t Be Overlooked, Or. St. B. Bull., Dec. 1995, at 21; Clifford Miller, Electronic Evidence—Can You Prove The Transaction Took Place?, Computer Law., May 1992, at 21; Silvernail, supra note 4; Whitehair & Koontz, supra note 9, at 45; Stephen Zovickian & Geoffrey Howard, Electronic Discovery In Construction Litigation, Construction Law., July 1998, at 8.
54 See James E. Carbine & Lynn McLain, Proposed Model Rules Governing the Admissibility of Computer-Generated Evidence, 15 Santa Clara Computer & High Tech. L.J. 1 (1999); Anthony J. Dreyer, When the Postman Beeps Twice: The Admissibility of Electronic Mail under the Business Records Exception of the Federal Rules of Evidence, 64 Fordham L. Rev. 2285 (1996).
55 See, e.g., Herbert v. Lando, 441 U.S. 153, 177 (1979); see also Fed. R. Civ. P. 1 (the Rules should be “construed and administrated to secure the just, speedy, and inexpensive determination of every action.”).
56 329 U.S. 495, 500–01 (1947) (cited in 8 Wright et al., supra note 21, § 2001, at 39).
57 See 8 Wright et al., supra note 21, at 40 (describing liberalization of the discovery rules). Professors Wright, Miller and Marcus identify three distinct purposes of the current discovery rules: “(1) To narrow the issues, in order that at the trial it may be necessary to produce evidence only on a residue of matters that are found to be actually disputed and controverted. (2) To obtain evidence for use at the trial. (3) To secure information about the existence of evidence that may be used at the trial and to ascertain how and from whom it may be procured . . . .” Id. at 41.
58 See Fed. R. Civ. P. 26(a)(1). An amendment of this Rule is also slated to take effect in December 2000. See discussion supra note 22.
59 See Fed. R. Civ. P. 30, 31.
60 See Fed. R. Civ. P. 33.
61 See Fed. R. Civ. P. 34 (also allowing entry upon land for inspection and other purposes).
62 See Fed. R. Civ. P. 35.
63 See Fed. R. Civ. P. 26(a)(2).
64 See Fed. R. Civ. P. 36.
65 See Fed. R. Civ. P. 45.
66 Fed. R. Civ. P. 26(b)(1).
67 But see supra note 22 (quoting language of revised Rule 26(b)(1), to take effect at the end of 2000).
68 Fed. R. Civ. P. 34(a) (emphasis added).
69 Fed. R. Civ. P. 34 advisory committee’s note (1970).
70 Fed. R. Civ. P. 34(b).
71 See Fed. R. Civ. P. 34(b).
72 See Fed. R. Civ. P. 37(a).
73 The same question has been asked more broadly in related contexts. For example, Professor Lawrence Lessig questioned whether cyberspace may be regulated by analogy to the regulation of other space, or whether “the old analogies just don’t cut it.” See Lawrence Lessig, The Path Of Cyberlaw, 104 Yale L.J. 1743, 1743 n.1 (1995) (quoting Trotter Hardy, The Proper Legal Regime for “Cyberspace,” 55 U. Pitt. L. Rev. 993, 994 (1994)).
74 See Fed. R. Civ. P. 34(a).
75 See Oxford English Dictionary 605 (2d ed. 1989) (defining compilation as “heaping or piling together; accumulation”).
76 In accordance with common usage, we use the terms “producing party” and “respondent” interchangeably to refer to a litigant that produces documents pursuant to a Rule 34 document demand. Similarly, we use the term “requesting party” to refer to a litigant that propounds discovery requests or demands.
77 See Feldman & Kohn, supra note 37, at 56 (reporting that 90% of organizations with over 1000 employees use e-mail).
78 Electronic storage devices typically permit users to replicate the information they store by copying data directly onto another electronic storage device, such as a floppy disk (which can fit in a shirt pocket without difficulty).
79 For example, consider a Rule 34 request for any documents concerning the respondent’s financial condition in 1999. The respondent might store that information in a customized spreadsheet program file. Producing the program file would not only reveal the financial information sought by the document request, but also might provide the requesting party with portions of the customized spreadsheet software and reveal how the respondent organized its program files to use financial information in the course of its business operations. See also infra Part III.C.2. for another example of how producing information in electronic form may infringe the proprietary rights of the respondent.
80 Document requests may implicate such massive quantities of documents that printing those documents from the computer system would tie up printers for extended periods, thereby preventing others from using them and requiring extensive supervision.
81 See supra Part I.C.1. (discussing embedded data).
82 The Intel Corporation was required to respond to such a document demand propounded by the Federal Trade Commission in 1997.
83 Rule 26(b)(2) allows courts to limit discovery in three specific circumstances: (i) where “the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;” (ii) where “the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought;” or (iii) where “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2); see infra notes 164–66 and accompanying text (discussing proportionality provisions).
84 See supra Part I.C.1. (explaining and defining these terms).
85 See, e.g., Sanders v. Levy, 558 F.2d 636, 648 (2d Cir. 1977) (en banc) (“The 1970 Amendments to the Federal Rules rendered Rule 34 specifically applicable to the discovery of computerized information . . .”), rev’d on other grounds sub nom. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978); see also Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1382–83 (7th Cir. 1993) (holding computerized data discoverable under Rule 34 even where discovery demand seeks “written documents”); Williams v. E.I. du Pont de Nemours & Co., 119 F.R.D. 648, 651 (W.D. Ky. 1987) (computerized database on disk and related explanatory description within scope of Rule 34 discovery); National Union Elec. Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1257, 1261–62 (E.D. Pa. 1980) (ordering plaintiff to produce computer tape in readable form); Adams v. Dan River Mills, Inc., 54 F.R.D. 220, 221–22 (W.D. Va. 1972) (computer cards or tapes from master payroll file and computer printouts for W-2 form within scope of Rule 34).
86 Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 1995 WL 649934, at *2 (S.D.N.Y. Nov. 3, 1995).
87 8 Wright et al., supra note 21, § 2218, at 450 (the 1970 amendment to Rule 34 “brought the federal rules . . . into the computer age”); see also 7 James Wm. Moore Et al., Moore’s Federal Practice § 34.12[3][a], at 34–37 (3d ed. 1999) (“Computer records and other electronically stored data are clearly within the permissible scope of discovery.”).
88 See, e.g., infra text notes 104–11 (discussing conflict between the holdings of, inter alia, Hasbro, 1995 WL 649934, at *1 and Williams v. Owens-Illinois, Inc., 665 F.2d 918, 932–33 (9th Cir. 1982) on the issue of whether respondent must produce both hard copy and electronic version of discoverable information).
89 See, e.g., City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir. 1984) (“A discovery order, unlike a final order, is interlocutory and non-appealable under 28 U.S.C. § 1291.”) (citing Hartley Pen Co. v. United States District Court, 287 F.2d 324, 326–27 (9th Cir. 1961)). Indeed, the vast majority of discovery decisions are issued orally rather than by written opinion.
90 Mark D. Robins, Computers And The Discovery Of Evidence—A New Dimension To Civil Procedure, 17 J. Marshall J. Computer & Info. L. 411, 412 (1999) (citing Fennel v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996)); see Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. Ct. App. 1996). In an effort to organize this body of law, Mr. Robins divides the decisions related to electronic discovery into four categories: (1) cases resolving disputes over computer-related materials pertaining to trial testimony, such as electronically-stored data underlying an expert’s conclusions; (2) cases resolving disputes over computer-related materials whose discovery will facilitate trial preparation, such as the electronic version of documents that have already been produced in hard copy; (3) cases resolving disputes over computer-related materials that have independent significance, such as electronic evidence relevant to a party’s claim or defense; and (4) cases resolving disputes over discovery into the nature of an opponent’s computer-storage media, such as efforts to discover the flaws in a party’s procedures for inputting and processing information. See Robins, supra, at 428.
91 Advisory Committee Note to Rule 34(b), in Amendments to the Federal Rules of Civil Procedure, 85 F.R.D. 521, 532 (1980).
92 See Fed. R. Civ. P. 34(b).
93 See Michael A. Pope, Rule 34: Controlling the Paper Avalanche, Litig., Spring 1981, at 57 cited in Edward F. Sherman & Stephen O. Kinnard, Federal Court Discovery In The 80’s—Making The Rules Work, 95 F.R.D. 245, 255 n.41 (1982).
94 See 104 F.R.D. 23, 25 (N.D. Ill. 1984).
95 See id. at 36 n.20 (citing Sherman & Kinnard, supra note 93, at 255–58).
96 See 136 F.R.D. 449, 451 (W.D.N.C. 1991).
97 See id. at 451.
98 See id. at 456.
99 See, e.g., O’Connor v. Boeing N. Am., Inc., 185 F.R.D. 272, 277 (C.D. Cal. 1999); Capacchione v. Charlotte-Mecklenberg Sch., 182 F.R.D. 486, 490 (W.D.N.C. 1998); First Options of Chicago v. Wallenstein, No. 92–5770, 1994 WL 451160, at *4 (E.D. Pa. Feb. 14, 1994); Herdlein Techs., Inc. v. Century Contractors, Inc., 147 F.R.D. 103, 105 (W.D.N.C. 1993).
100 No. 92–1795, 1997 WL 178844, at *1 (D.P.R. March 27, 1997), partially rev’d on other grounds, 150 F.3d 88 (1st Cir. 1998).
101 See id. at *67.
102 See id.
103 Id. at *68 (citing Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D. Mass. 1976)) (holding “to allow a defendant whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules”).
104 See 1995 WL 649934, at *1.
105 Id.
106 See 494 F. Supp. 1257, 1261 (E.D. Pa. 1980).
107 Id. at 1262.
108 See id.
109 See Williams, 665 F.2d at 932–33.
110 Id. at 933.
111 See, e.g., Torrington Co. v. United States, No. 91–08–00568, 1992 WL 40699, at *2 (Ct. Int’l Trade Feb. 21, 1992) (citing Williams and deciding that plaintiffs were not entitled to discover database where defendant produced hard copies); Malone v. Ford Motor Co., No. 12539, 1992 WL 885097, at *2–3 (Va. Cir. Ct. Dec. 31, 1992)(same).
112 See, e.g., Continental Ill. Nat’l Bank & Trust Co. v. Caton, 136 F.R.D. 682, 685 (D. Kan. 1991); Bills v. Kennecott Corp., 108 F.R.D. 459, 462 (D. Utah 1985).
113 See Fed. R. Civ. P. 26(c); see also Sanders v. Levy, 558 F.2d 636, 639 (2d Cir. 1977).
114 See Delozier v. First Nat’l Bank of Gatlinburg, 109 F.R.D. 161, 164 (E.D. Tenn. 1986).
115 See Stapleton v. Kawasaki Heavy Indus., Ltd., 69 F.R.D. 489, 490 (N.D. Ga. 1975). But see In re Puerto Rico Elec. Power Auth., 687 F.2d 501, 505–09 (1st Cir. 1982) (producing party not required to pay for English translations of documents written in another language); In re Korean Air Lines Disaster, 103 F.R.D. 357, 358 (D.D.C. 1984) (same); Cook v. Volkswagen of America, Inc., 101 F.R.D. 92, 92 (S.D.W. Va. 1984) (same).
116 See 88 F.R.D. 191, 192–93 (S.D. Ohio 1980).
117 See id. at 193.
118 See id. at 197.
119 See id.
120 88 F.R.D. at 198 (citing Kozlowski, 73 F.R.D. at 76).
121 See 437 U.S. 340, 342 (1978).
122 See id. at 342–43.
123 See id. at 344–47.
124 See id. at 346.
125 See id. at 347.
126 Sanders v. Levy, 558 F.2d 636, 649 (2d Cir. 1977).
127 See Oppenheimer Fund, Inc., 437 U.S. at 362–63.
128 Id.
129 See 108 F.R.D. 459, 459 (D. Utah 1985).
130 See id. at 460.
131 See id.
132 See id.
133 See id.
134 See Bills, 108 F.R.D. at 462.
135 See id.
136 See id.
137 See id. at 463.
138 See id. at 464.
139 See 138 F.3d 1164, 1171 (7th Cir. 1998).
140 See id.
141 See id.
142 See id.
143 See In re Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897, 1995 WL 360526, at ** 1, 3 (N.D. Ill. June 15, 1995).
144 Daewoo Elecs. Co. v. United States, 650 F. Supp. 1003, 1006 (Ct. Int’l Trade 1986), cited in Brand Name Prescription Drugs, 1995 WL 360526, at *2.
145 We recognize that paper evidence can be, and sometimes is, encrypted just like computerized data. For example, a confidential letter might be written in code, which would require any reader to know that code before the letter could be understood. However, whereas the bulk of paper evidence used in everyday life is not encoded, electronic evidence is necessarily coded because of the way computers store information.
146 Computer programs are afforded intellectual property protection under copyright and patent law. See, e.g., Computer Assocs. Int’l v. Altai, Inc., 982 F.2d 693, 701 (2d Cir. 1992). Also, customer lists are clearly entitled to protection. See North Atl. Instruments, Inc. v. Haber & Apex Signal Corp., 188 F.3d 38, 44–46 (2d Cir. 1999).
147 Rule 34(a) allows a party to serve a document request for designated documents “translated, if necessary, by the respondent through detection devices into reasonably usable form.” See Fed. R. Civ. P. 34(a) The Committee’s Note also explains that respondents may be required to use their own devices to translate “data compilations” if necessary to allow the discovering party to make use of those data compilations. See FED. R. CIV. P. 34(a) advisory committee’s note (1970).
148 The comparative value of electronically-stored information, as compared with information stored on paper, was discussed by the D.C. Circuit in Public Citizen v. Carlin. See 184 F.3d 900, 908–10 (D.C. Cir. 1999) (upholding regulations issued by United States Archivist permitting disposal of electronic records created by federal agencies if hard copy versions existed).
149 “The inclusive description of ‘documents’ . . . makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent’s devices, respondent may be required to use [its] devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data.” Fed. R. Civ. P. 34. advisory committee’s note (1970) (emphasis added).
150 See supra Part I.C.1.(describing backup, temporary and embedded computer files).
151 See FED. R. CIV. P. 34(a).
152 See Howard W. Goldstein, Corporate Crime, N.Y. L.J., July 29, 1999, at 5.
153 See id.
154 White, supra note 27, at 83. Data storage capabilities are rapidly increasing; some of today’s personal computers can store as much as fifty gigbytes of information.
155 “To no one will We sell, to none will We deny or delay, right or justice.” Magna Carta (1215); see also Judge Irving R. Kaufman, The Philosophy Of Effective Judicial Supervision Over Litigation, 29 F.R.D. 207, 215-16 (1961) (stating in reference to the Magna Carta that “almost 750 years later, that great and simple pledge has not yet been completely fulfilled” and noting the late Chief Justice Earl Warren had appealed to each judge “to bring the full prestige of his judicial office to bear ‘at every stage of litigation in order to ensure promptness and efficiency.’”).
156 See Fed. R. Civ. P. 1 (Rules should be interpreted to ensure the “just, speedy, and inexpensive determination of every action.”).
157 See, e.g., Boston & Maine Corp. v. Town of Hampton, 987 F.2d 855, 865 (1st Cir. 1993) (noting rising cost of litigation); Mitchell A. Orpett, The Litigation Cost Crisis: Is There A Professional In The House?, BRIEF, Fall 1998, at 33 (same).
158 Assuming the responding party reviewed 10,000 pages of documents at a cost of $100 per hour (a low estimate), and assuming the review of 100 pages per hour, the total fees for the document review would be $10,000. The requesting party would incur copying charges in the neighborhood of $1000 (assuming a cost of ten cents per page) as well as shipping costs simply to get the requested documents to its attorneys and then would incur additional fees for its own attorneys’ review of documents.
159 See, e.g., S.E.C. v. Cassano, 189 F.R.D. 83, 86 (S.D.N.Y. 1999); Aramony v. United Way of America, 969 F. Supp. 226, 235 (S.D.N.Y. 1997); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985).
160 We are unaware of any computerized search programs capable of determining whether a document contains privileged communications. Computers, however, could easily assist reviewers in the process. For example, computers could be used to identify whether the author or recipient of any given communication was an attorney employed by the client at the time the communication was made. Computers also could be used to quickly flag documents containing key words likely to indicate a document that contained an attorney-client privileged communication.
161 See FED. R. CIV. P. 34(b).
162 Rule 26(c) allows the shifting of discovery costs “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” FED. R. CIV. P. 26(c). See, e.g., Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050, 1053–54 (S.D. Cal. 1999); In re First Am. Corp., 184 F.R.D. 234, 239 (S.D.N.Y. 1998).
163 See FED. R. CIV. P. 26(C), 34(a) and advisory committee’s note (1970).
164 These provisions state: “The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2).
165 See Richard L. Marcus, Retooling American Discovery For The Twenty-First Century: Toward A New World Order? 7 Tul. J. Int’l & Comp. L. 153, 162–63 (1999). Professor Marcus recognizes, however, that the proportionality provisions of Rule 26(b)(2) have made it “‘clearer than it was before that [judges] should take responsibility for the amount of discovery in the cases they manage.’” Id. at 163 (quoting 8 Wright et al., supra note 21, § 2008.1, at 121); see also Richard L. Marcus, Discovery Containment Redux, 39 B.C. L. Rev. 747, 773–74 (1998) (discussing the failure of the proportionality provisions of Rule 26 to change significantly federal discovery).
166See, e.g., In Re Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897, 1995 WL 360526, at *2 (N.D. Ill. June 15, 1995) (litigant required to search 30 million pages of documents at a cost of $70,000 to retrieve and produce e-mail data).
167See supra Part I.C.1. (describing backup and temporary files, as well as residual data). Duplicate versions of information exist for another reason as well. Most e-mail programs allow users to automatically reply to an e-mail communication in a manner that sends both the reply and the original message. Similarly, the text of e-mail communications can be forwarded to multiple individuals along with additional comments. The result is commonly referred to as “e-mail chains” where a critical communication may be passed on to many users and stored on their computer as a data file.
168 Overly, supra note 20, § 1.01, at 3–10.
169 See id.
170 See FED. R. CIV. P. 34(a) advisory committee’s note (1970).
171 See FED. R. CIV. P. 34(a).
172 See FED. R. CIV. P. 34(a) advisory committee’s note (1970).
173 See FED. R. CIV. P. 34(a).
174 A cookie file, for example, constitutes newly-created information generated by a Web site and stored by a computer’s browser program without the involvement of the computer user and therefore arguably is not a “compilation” at all.
175 Additions to the current Rule are set forth in bold text (including the comma following “. . . the scope of Rule 26(b)”), deletions in strike-through text.
176 As explained in Part IV.C., if and when residual data is within a respondent’s “possession, custody or control” is a complex issue that, while beyond the scope of this Article, will have to be addressed in the future.
177 In the context of paper discovery, a reasonableness test is used to determine whether a record is in the “possession, custody or control” of a party, and parties are not required to produce material when doing so would be unduly burdensome. See, e.g., Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1426–27 (7th Cir. 1993) (party need not produce documents simply because it could obtain that document “if it tried hard enough”); Bank of N.Y. v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 146 (S.D.N.Y. 1997) (document is considered to be within a party’s “control” if that party reasonably can obtain the document from a non-party); Wardrip v. Hart, 934 F. Supp. 1282, 1286 (D. Kan. 1996) (defendant must produce records in possession of his accountant, because defendant had a legal right to obtain those records).
178 See supra Part III.B.1. (describing conflicting case law on this issue).
179 See 94 Civ. 2120, 1995 WL 649934, at *1–2 (S.D.N.Y. Nov. 3, 1995).
180 See Williams v. Owens–Illinois, Inc., 665 F.2d 918, 932–33 (9th Cir. 1982).
181 Requiring the production of discoverable electronic evidence in electronic form might also lessen, to some degree, the environmental impact of litigation by reducing unnecessary use of paper.
182 This proposal rejects the position that the burden of persuasion rests on respondents seeking to shift costs under Rule 26(c). See, e.g., Bills v. Kennecott Corp., 108 F.R.D. 459, 462 (D. Utah 1985) (stating respondent must “shoulder the burden of showing ‘undue’ expense” under Rule 26 before courts shift the costs to the requesting party . . .”).
183 See supra Part III.B.2.
184 See, e.g., Martindell v. IT&T Corp., 594 F.2d 291, 295–96 (2d Cir. 1979) (establishing standard to be applied to a non-party government intervenor’s petition for modification of a protective order); Crothers v. Pilgrim Mortgage Corp., No. 95 Civ. 4681, 1997 WL 570583, at *2–4 (S.D.N.Y. Sept. 11, 1997) (discussing circumstances under which private non-party asserting its own interests may obtain the modification of a sealing order issued pursuant to a settlement agreement of which it had no notice); In re “Agent Orange” Prod. Liab. Litig., 104 F.R.D. 559, 568 (E.D.N.Y. 1985), aff’d on different grounds, 821 F.2d 139, 147 (2d Cir. 1987) (establishing standard applied to petitions by private parties who assert a public interest to obtain modification of protective orders).
185 See supra notes 1–8 and accompanying text.
186 Even in the absence of privilege concerns, litigants may elect to have their attorneys scrutinize all produced material to ascertain the strategic value of the production to their adversary.
187 See supra Part I.C.1. (discussing and explaining residual data). Portions of a deleted file lingering on as residual data may be overwritten with other information, because by deleting the file’s address from the storage device’s directory the user signals the computer that it may re-use the space it once allotted for the deleted file.
188 See, e.g., Marcus, Discovery Containment Redux, supra note 165, at 749–51 (discussing question of whether broad discovery rules have put pressure on areas of substantive law).