Legal Research in an Electronic Age: Electronic Data Discovery, a Litigation Albatross of Gigantic Proportions

[Excerpt] “The increase in e-discovery, e-discovery‘s impact on litigation, and the courts‘ unavoidable role in defining the limits of discovery led to the author‘s decision to develop this article. The availability, accessibility, and the ease of requesting electronic data, resulting in increased e-discovery under the Federal Rules of Civil Procedure, is an important issue that will affect the legal profession and its constituents in many ways for years to come. Part II of this article is an overview of Federal Rule of Civil Procedure 26(f). This part stresses that in recognizing the herculean task involved in e-discovery, courts expect that litigants immediately begin the process of understanding what their cases require from an e-discovery standpoint. Part III highlights judges and cases that have had a clear hand in shaping the terrain of where electronic data discovery issues are heading. Part IV examines the ramifications of failing to comply with Federal Rule of Civil Procedure 26(f), illustrating the importance of Rule 26(f) in the litigation process. Abiding by the agreements that the parties reach under Rule 26(f) could avoid most, if not all, e-discovery problems. Part V examines problems associated with electronic data discovery. Part VI offers workable solutions to electronic data discovery concerns. Finally, Part VII concludes that even though the outer boundaries of e-discovery may be uncertain, judges, practitioners, and law schools must work together to ensure that exposure, training, and classes are available from the earliest possible time to ensure efficient and responsible adherence to the new requirements that the electronic age has brought to the litigation process.

Electronic Data Discovery Sanctions: The Unmapped, Unwinding, Meandering Road, and the Courts’ Role in Steadying the Playing Field

This Article highlights a growing problem for litigants who are involved in electronic data discovery (EDD). The world of litigation today encompasses massive amounts of electronically produced documents. It is estimated that ninety-nine percent of new information is created and stored electronically. The litigation practice generally, as it relates to electronic discovery (e-discovery) particularly, has mushroomed into a chaotic process. The technological age has radically impacted the federal discovery process. The purpose of the 2006 amendments to the Federal Rules of Civil Procedure (FRCP) was, among other things, to address problems associated with electronically stored information (ESI) that arise during the litigation process.... Part II analyzes courts’ approach to EDD violations and the different standards required for sanctionable conduct. Part III illustrates certain trends and methodologies involving sanctions that have arisen since the adoption of the 2006 FRCP. Part IV highlights the necessary corollary that indistinct sanctions have had on the litigation experience. Part V addresses the role of preservation in the sanctions process. Finally, Part VI concludes by examining possible solutions to ameliorate or redress the costly and often avoidable consequences of failure to comply with best practices regarding the preservation, production, and destruction of electronically generated documents that may be required during the litigation process