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Student Publications Homepage
ARTICLE CONTENTS
[Pages 327-382]
TOP OF ARTICLE
Introduction
I. Electronic Discovery Terms Defined and Explained
A. Basic Definitions
B. How Computers Transform and Store Information in Binary Form
C. Types of Electronic Evidence Subject to Discovery
1. Types of Stored Data
2. Types Of Internet-Related Computer Information
D. The Predictable Rise of Discovery Disputes Regarding Electronic Evidence
II. The Current Framework of Rule 34 Discovery
A. An Overview of Federal Discovery Tools
B. A Basic Description of Rule 34
III. Is Rule 34 Capable of Governing Electronic Discovery?
A. New Issues Generated By Electronic Evidence
B. How Courts Currently Address Electronic Discovery
1. Cases Addressing the Manner in Which Documents Are Produced Pursuant to Rule 34
2. Case Law Addressing the Cost of Producing Documents Under Rule 34
C. The Differences Between Paper and Electronic Evidence
1. Electronic Evidence Is Always Encoded
2. Electronic Evidence Often Contains Proprietary Characteristics
3. Electronic Evidence Is Always Processable
4. Electronic Evidence Is Often Invisible
5. Electronic Evidence Is Perfectly and Easily Emulatable
6. Electronic Evidence Exists in Voluminous Quantities
D. Rule 34 Fails to Utilize Computer Technology to Prevent a Rise in Discovery Costs
E. Rule 34 Does Not Address Cost Issues
IV. Streamlining Electronic Discovery Under Rule 34
A. Defining the Scope of Rule 34(a) to Include All Forms of Electronic Evidence That Are Within the Respondent’s Possession, Custody or Control
B. Amending Rule 34 to Reduce Judicial Intervention and to Harness the Potential of Computerized Document Productions
C. The Rate of Technological Change Favors Prophylactic Rule Changes
D. Case Law Will Not Produce Consistent Procedural Rules Regarding Electronic Discovery
V. Issues for Future Debate and Deliberation
A. Disputes Concerning Formatting and Licensing Agreements
B. Altering the Rules of Inadvertent Production of Privileged Material to Enhance Electronic Discovery
C. Defining When Residual Data Is Within “The Possession, Custody or Control” of a Respondent
Conclusion
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