A publication of the National Center for State Courts
highlighting aspects of its Civil Justice Reform Initiative
IN THIS ISSUE:
Focus on E-discovery
Electronic Discovery: Questions and Answers
Adapted from “The New Frontier of Electronic Discovery,” an educational program at the
2004 Midyear Meeting of the Conference of Chief Justices, January 20, 2004.
What Is Electronic Discovery? How Does It Change the Discovery
Process for Judges?
Electronic discovery encompasses the request for and provision of information stored in digital
form. Electronic records can be found on a wide array of devices, from desktop and laptop
computers, network servers that store e-mail messages, to personal digital assistants and digi-
tal phones. They can also be found in a wide spectrum of data files that can be extremely
easy or extremely difficult to search. Electronic materials may be provided in a variety of
forms, each of which conveys different quantities and types of hidden information and has its
attendant advantages, disadvantages,
and costs. No matter what the form of
production, some procedures will have
to be agreed upon to facilitate review
and avoid the inadvertent disclosure of
privileged information. The voluminous
nature of electronic records and prob-
lems with accessing them greatly esca-
late the cost of responding to discovery
requests.
The problems raised by electronic discovery are not insurmountable for the average trial
judge who is familiar with discovery concepts in general. In most instances, it is sufficient
for the judge to have a basic level of understanding to spot the issues. What is essential,
however, is for the lawyers for the parties to fulfill their obligation to explain clearly the
nature of the discovery dispute and the costs on each side—i.e., provide an understanding
of the media and system being used and their limitations. As one judge put it:
I don’t care how much I try to understand meta-data, and residual data, and legacy data, and up
data, and down data, and whatever, I am never going