Mark D. Robins


Attorneys are largely unaware of the types of evidence available through computer related sources. Lawyers and courts face similar obstacles in exploring the electronic frontier. The legal community is confronting the dispute between a liberal policy of open access to relevant information and the burdens of computer-related discovery of sensitive, confidential and privileged material. Computers are used to generate, process and store vast amounts of useful information-related evidence. Computers also create discovery hazards when they store damaging information, trade secrets and other proprietary or confidential data. Another discovery problem arises because of the lack of uniformity of spoliation laws over liability for the destruction of computer information when under a duty to preserve this evidence. Electronic discovery evidence can be broken into four categories: (1) cases in which computer-related materials pertain to testimony that will be offered at trial; (2) cases involving computer-related materials whose discovery will facilitate trial preparation; (3) cases involving computer-related materials that have independent evidentiary significance; and (4) cases in which a party has sought discovery into the nature of the opposing party's computer-storage media. Computer-related discovery provides both benefits and burdens to litigation. Benefits include easing fact finding and increasing information processing efficiency. Burdens include the enhanced danger of exposing the exempted information from the discovery process and potential inefficiencies and costs entailed by discovery into computer storage media. Technological and procedural issues present lawyers with a unique mix of strategic and tactical considerations, which include the timing of discovery, informational challenges in approaching computer-related discovery, and evidentiary issues that impact computer related discovery. A premium will be placed on a party's ability to map new technological terrain and to adapt existing procedures to overcome obstacles on that terrain. Although the procedural framework for discovery may remain much the same, discovery of computer-related evidence will take the existing procedural system into a new dimension.