The Litigation Landscape In An E-Discovery World

By: Morin I. Jacob
California Public Agency Labor & Employment Blog, May 10, 2011

The "e-discovery" amendments to the Federal Rules of Civil Procedure were implemented in December 2006.  In 2009, California enacted similar "e-discovery" rules.  The adoption of these rules has greatly impacted the landscape for entities that find themselves in litigation in state or federal court.  There is an issue, for example, about the retention of documents that are stored in hard form and electronically.

The federal and state e-discovery rules are predicated in large part on the decision in Zubulake v. UBS Warburg LLC, a case which dealt with a litigant's duty to preserve and produce documents and electronically stored information ("ESI").  ESI comes in many forms.  It includes e-mail, voicemail, text messages, word processing documents, spreadsheets, websites, etc.  The duty to preserve ESI obligates a party who knows of actual or probable litigation not to destroy discoverable ESI or places where ESI is stored (e.g., hard drives, flash drives, servers, back-up tapes, etc.)  A party to a lawsuit cannot satisfy its e-discovery obligations simply by printing out hard copies of e-mails or other documents since electronic data (e.g., "metadata") underlying an electronic document is often just as relevant as the document itself.  "Metadata" is the electronic data that can identify when a document was created, who created it, what changes or modifications to a document were made, who made those changes, when they were made, etc.

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