Everything is Digital and There is no Stopping it: How Discovery is Keeping up Around the World

"As our country increasingly relies on electronic information storage and communication, it is imperative that our Government amend our information security laws accordingly." - Jo Ann Davis[1]

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Technology. Electronic Discovery. Change.

The United States produces about “40% of the world’s newly stored information.”[2] This amounts to about 1.8 zettabytes of data each year, a number that continues to double every two years.[2] As a reference, storage of 1.8 zettabytes would require around 57.5 billion 32 GB iPads; 57.5 billion iPads would cost about $34.4 trillion dollars; and $34.4 trillion is equivalent to the GDP of the United States, Japan, China, Germany, France, the United Kingdom, and Italy combined.[2] The court system in the United States is adapting to this increased technology use by allowing a much easier avenue for litigators to obtain the relevant information that they need. Other countries, however, seem to be less adaptive and are instead taking increasing measures to protect data and privacy.

 

Reasons for Allowing ESI (“Electronically Store Information”) into Discovery

In 2009, Internet researchers calculated that there were approximately 247 billion e-mail messages being sent daily.[3] The wireless industry reported that in that same year there were approximately 4.1 billion text messages being sent daily.[4] Today, there are hardly any companies or individuals who do not communicate via email or text message. In fact, most people communicate predominantly through these electronic means. Thus, there is an increasing likelihood that critical information needed for litigation is contained within either email or text message format. To respond to this new reality, courts should follow the United States Supreme Court’s example and update discovery rules.

First, rules should more clearly define the term “documents” to include electronic formats in order to remove all doubt as to their inclusion. Additionally, since electronic discovery is a new field and since there are no substantive guidelines on how to proceed with discovery regarding ESI, new rules can give clarity to this legal uncertainty.

Second, e-discovery allows for a more efficient litigation system by helping to cut down on discovery costs, improve accuracy in obtaining relevant documents, and reduce time required to get through documents compared to traditional discovery processes.[5] Moreover, since the discovery process is the most costly and timing consuming stage of litigation, e-discovery reforms the most burdensome aspect of litigation and allows courts to better sort through frivolous claims right from the beginning.  

Finally, e-discovery rules can promote better cooperation between parties. For example, the United States’ requires that opposing counsels meet with each other in order to discuss certain discovery issues before parties can proceed to trial or go to the magistrate judge.[6] This forces a working relationship and also reduces the amount of time judges need to spend on each case.

 

Changes to the United States Federal Rules of Civil Procedure

On April 12, 2006, proposed amendments to the Federal Rules of Civil Procedure were approved by the United States Supreme Court and put into effect on December 1, 2006.[7] These amendments revolutionized the way litigators conducted their discovery processes and helped address the large amounts of electronic data being produced daily. Essentially, the amendments provide a means for judges to gain insight into discovery processes to prevent issues such as spoliation and encourage parties to work together in order to resolve their disputes.[7] The most important amendments to the Federal Rules of Civil Procedure in regard to ESI lie in Rule 26 and Rule 34.

Rule 26

Rule 26 of the Federal Rules of Civil Procedure states that discoverable information includes “all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control.”[8] According to Rule 26, each party is now required to disclose where the electronic documents are located and produce such documents in electronic form.[7] This rule change was implemented to reduce costs during discovery as it is often much easier and cheaper to produce volumes of electronic documents rather than traditional paper documents.

Despite these basic cost savings, retrieving certain electronic information can actually be extremely expensive. Thus, Rule 26 limits the ESI opposing parties can request: the Specific Limitations on Electronically Stored Information section states: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”[7] However, use of this preclusion prevents the requesting party from obtaining certain information. When this becomes a burden to the requesting party, judges will have to use their efforts to balance the importance of the electronic information being sought against the costs associated with producing the documents. This may end up giving too much discretion to judges as they may not be qualified to make this determination.  

Rule 34

Rule 34 of the Federal Rules of Civil Procedure states that a party may request production of “any designated documents or electronically stored information . . . stored in any medium from which information can be obtained either directly or . . . after translation by the responding party into a reasonably usable form.”[9] Additionally, the requesting party is allowed to “specify the form or forms in which electronically stored information is to be produced.”[9] Rule 34 directly addresses the issue regarding whether or not electronically stored documents need to be produced. It also shines light onto the fact that litigators and judges can no longer continue to avoid issues regarding electronic materials during discovery.[6]

The explicitly stated terms “electronically stored information”[7] in Rule 34 indicates that the Supreme Court is taking continuous efforts to address the progressive advances happening today. But as the Supreme Court tries to catch up with technological improvements by allowing parties to specify the format they want documents to be produced in,[10] litigators are finding loopholes and ways to ease out of this requirement. If parties are allowed to request document production formats, then this means that parties can potentially engage in document production cost wars. Parties can potentially be too overwhelmed and over worked due to the costs of production and never get to the heart of the issues that are being litigated.

 

Other Countries Addressing ESI

As the United States moves into a more digitized litigation system, other countries are starting to take notice. However, instead of following in the footsteps of the United States and increasing access to ESI, these countries are taking rigorous efforts to further restrict disclosure of ESI during litigation.

For example, the United Kingdom limits disclosure of materials “to that which is necessary to deal with the case justly.”[11] Compare this to the Federal Rules of Civil Procedure which allow parties to conduct a reasonable search for all relevant ESI. Effectively, this means that the United States, by allowing reasonable discovery, implements a broader scope of document disclosure than the United Kingdom’s necessary standard.

In Canada, the Ontario Rules of Civil Procedure mandate parties to do a “meet and confer conference when discussing discoverability of electronic data.”[11] Additionally, parties are required to adhere to The Sedona Canada Principles.[11] However, unlike the United States that favors allowing any relevant ESI to be discoverable, Canada has extensive rules for stricter protection of personal data and restricts discovery of materials that may infringe on one’s personal privacy.[11]

In Asia, laws regarding e-discovery and ESI are topics that are still up in the air. While some countries, like Singapore, are moving towards allowing disclosure of electronic materials, many others, like Japan and South Korea, are still just considering this allowance.[12] This is because many Asian countries are unreceptive to the idea of allowing electronic documents into discovery because the Asian litigation system generally disfavors discovery processes. The topic has only received notice due to the many international companies located in Asia that have a United States based litigation system.[12] However, substantial implementation of eDiscovery in Asia is still a highly debated issue.

 

Conclusion

Comparing the ESI discovery rules of various countries shows a difference in values: foreign countries seem to value privacy rights and have rules designed to prevent infringement on these rights while the United States seems to value processes that are cheaper, faster, and more effective. However, whether or not privacy rights are valued over litigation efficiency, one thing is for sure: electronic information is being produced at a monumental rate. In response, court systems can either sit back and continue with the old adjudication processes or move forward and beyond that traditional piece of white paper.

 

[1] 152 Cong. Rec. H19898 (daily ed. Sept. 26, 2006).
[2] Peter Lyman & Hal R. Varian, How Much Information? (Oct. 27, 2003), available at http://www2.sims.berkeley.edu/research/projects/how-much-info-2003/execsum.htm.
[3] Pingdom, Internet 2009 in Numbers (Jan. 22, 2010), available at http://royal.pingdom.com/2010/01/22/internet-2009-in-numbers. (This Internet industry blog posting contains a wealth of interesting statistics.) 
[4] CTIA-The Wireless Association Announces Semi-Annual Wireless Industry Survey Results (Oct. 7, 2009), available at http://www.ctia.org/media/press/body.cfm/prid/1870.
[5] Why Ediscovery Should be a top Priority for Your Organization (Oct. 2013), available at http://www.legal500.com/assets/images/sponsors/HP_Why_eDiscovery.pdf.
[6] Terry Ahearn & Wendy Axelrod, E-Discovery: Cooperation and Proportionality, the Past, Present and Future (Sep. 24, 2013), available at http://www.insidecounsel.com/2013/09/24/e-discovery-cooperation-and-proportionality-the-pa.
[7] Carl G. Rogers, The 2006 Discovery Amendments to the Federal Rules of Civil Procedure (Aug. 2006), available at http://apps.americanbar.org/lpm/lpt/articles/tch08061.shtml.
[8] Fed. R. Civ. P. 26.
[9] Fed. R. Civ. P. 34.
[10] Michele C.S. Lange, New FRCP Rules: What Does it Mean for You (Dec. 1, 2006), available at https://www.krollontrack.com/publications/frcprules.pdf.
[11] Brian Meegan, International Ediscovery: Best Practices Around the World (Feb. 19, 2004), available at http://www.theediscoveryblog.com/category/international-ediscovery-2/.
[12] Wayne Wong, 6 Practical tips for E-discovery in Asia and the Pacific (Jul. 20, 2012), available at http://www.insidecounsel.com/2012/07/20/6-practical-tips-for-e-discovery-in-asia-and-the-p.