1

Computer-Based Discovery in Federal Civil Litigation*

Kenneth J. Withers1

Federal Judicial Center

Washington, DC

Discovery is changing in response to the pervasive use of computers. More and more

cases involve e-mail, word-processed documents, spreadsheets, and records of Internet

activity.2 In some cases, computer-based discovery can be routine and uneventful.3 The

parties may agree simply to exchange computer disks of documents instead of paper.4 In

many cases, however, computer-based discovery generates disputes over the scope of

disclosure, form of production, privilege, and alleged spoliation. The costs associated

with computer-based discovery procedures can be extraordinary.5 In many of the reported

cases on electronic discovery, failure of the attorneys to understand their own clients’

computer systems, routines, capabilities, and limitations were at the heart of the

problem.6

 Early identification of potential discovery problems and early resolution of

these matters may be the key to reducing costs and delay in cases involving computerbased discovery.

Part One of this Introduction briefly discusses some of the positive aspects of computerbased discovery. Part Two explores the unique problems of computer-based discovery,

and offers some discovery management suggestions to attorneys. Part Three focuses on

the judicial role in managing computer-based discovery and preventing or resolving some

of the more common disputes. Finally, Appendix A provides a checklist of computerbased discovery considerations for a Rule 16(c) pretrial conference.

I. Potential Advantages of Computer-Based Discovery

A tremendous body of professional and academic literature is developing around the

issue of computer-based disclosure, discovery, and evidence. Most of this literature is

premised on the notion that computer-based discovery increases the cost and complexity

of civil litigation.7

 But no empirical research directly compares computer-based discovery

to analogous conventional discovery, and there is a strong argument for the opposite

premise, that the exchange of computer data, as opposed to paper, will reduce cost and

delay.8

 The costs of photocopying and transport can be reduced dramatically or

eliminated altogether.9

 The time involved in reviewing and organizing evidence can be

reduced by using word-searching, sorting, and other forms of computer manipulation.10

The cost of using a litigation support system is reduced dramatically if the documents are

in electronic form from the start and do not need to be scanned.11 Finally, electronic

discovery leads logically to electronic evidence. It stands to reason that many of the

media conversion costs associated with electronic courtroom presentations can be

reduced or eliminated if the documents are in electronic form from the start.

 *

 An earlier version of this article appears in the Federal Courts Law Review at

www.fedjudge.org.
Computer-Based Discovery in Federal Civil Litigation

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Computer-based discovery offers substantive advantages, as well. Evidence that would

have been impossible or extremely difficult to obtain can now become part of the truthseeking process. Drafts of documents that were routinely lost or destroyed in the

conventional paper-based world are now retrievable.12 Nearly all of the modern panoply

of computer-mediated communications, from e-mail messages to digital telephony to

virtual conferences, are recorded and saved as digital “documents.”13 Vast amounts of

data that would have been impossible to collect and manipulate in the conventional

paper-based business world can be assembled, transmitted, manipulated, and analyzed by

computer.14

Judges are becoming more sophisticated about computer-based discovery and more

willing to manage the process actively. As one computer forensics expert noted in a

recent conference, the increased sophistication of judges in this field has “raised the bar”

for attorneys appearing in computer-based discovery cases. When attorneys realize that

they no longer can muddle, bluff, or stonewall their way through computer-based

discovery, they will be forced to educate themselves and their clients, and may become

more forthcoming and cooperative with their opponents. 15

II. Unique Problems of Computer-Based Discovery

Though computer-based discovery has many potential advantages, it can raise unique

issues that normally do not occur or are less problematic in conventional, paper-based

discovery. Among the most common difficulties are the preservation of data subject to

discovery; the location and volume of data; e-mail as a novel medium; documents that

have been deleted from the computers; backup tapes, archives, and legacy data; the

conduct of on-site inspection; the form of production; and the need for expert assistance.

A. Preservation of data

In conventional paper-based discovery, the documentary sources of information have

been, for all intents and purposes, physically stable. Attorneys seldom have cause to

assume that paper or microfilm files are subject to imminent damage or destruction. Fire,

flood, or corporate document destruction procedures occasionally result in the loss of

potential evidence, but these have relatively rare occurrences. On the other hand,

information stored in electronic form is easily changed, overwritten, or obliterated by

everyday use of the computer, whether it is a single desktop PC (personal computer) or

an enterprise-wide network. The simple acts of booting up a computer, opening a file,

adding new data onto a hard disk, or running a routine maintenance program on a

network can alter or destroy existing data, without the user’s knowledge.

At the outset of litigation involving computer-based discovery, attorneys on both sides

have a heightened responsibility to inform their clients of the duty to preserve potential

evidence. Counsel who may be seeking discovery of computer-based information should

immediately notify opposing counsel of that fact and identify as clearly as possible the

categories of information that may be sought later. Counsel who may be responding to
Computer-Based Discovery in Federal Civil Litigation

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computer-based discovery may not want to wait for such notification, however. To avoid

possible embarrassment and accusations of “negligent spoliation,” he or she should

identify the computer-based information likely to be subject to discovery and take

reasonable steps to secure the integrity of that data. In Procter & Gamble Co. v.

Haugen,

16 a defamation and unfair trade practices case, the plaintiff failed to segregate

and preserve e-mail files that it knew would be subject to discovery. Ironically, the

plaintiff had insisted early in the case that the defendant save all of its e-mail. Even

though no specific preservation order was in place, the plaintiff was sanctioned $10,000

for its breach of discovery duties.

Early in the case, the parties should meet and try to agree on the steps each will take to

segregate and preserve relevant data, to avoid later accusations of spoliation. At the Rule

16 pretrial conference, the judge can issue a preservation order in line with the

agreement.

B. Location and volume of data

In the days of conventional paper-based discovery, most organizations had centrallylocated files or a limited number of physical file locations. In the PC-based world, each

employee may have a desktop computer, plus disks or other removable data storage

media, a laptop computer, a home computer, and a hand-held personal organizer, all

containing potentially relevant data. Larger organizations will have network servers

connecting and storing data for many PCs, plus backup and archival data storage

(discussed below). Offsite and even offshore data storage facilities, Internet service

providers, and other third parties may also hold data subject to discovery.17 The cost and

complication of conducting discovery in a modern, distributed business computing

environment can be enormous.

In paper-based record-keeping systems, outdated records, papers with no business

significance, and superfluous copies are destroyed routinely. Records managers maintain

paper files in “business-record order.” In computerized business environments,

equivalent electronic records management systems seldom exist.18 Copies of documents

are made routinely, distributed widely, and seldom purged when outdated. Potentially

discoverable records are stored according to computer logic, as opposed to “businessrecord” logic, and can be difficult to locate and untangle from irrelevant and privileged

records.19

The combination of multiple locations, tremendous volume, and arcane or non-existent

records management practices is potentially explosive for defending counsel. In Linnen

v. A.H. Robins Co.,

20 the defendant faced sanctions in the form of costs and a spoliation

inference stemming from counsel’s failure to completely investigate stored computer

backup tapes, while representing to the court that all relevant computer files had been

produced. Linnen was one of the various state product liability actions stemming from

the marketing and distribution a diet drug combination popularly known as “Phen-fen,”

which was linked with primary pulmonary hypertension. After counsel for defendant

Wyeth-Ayerst Laboratories denied the existence of e-mail backup tapes early in
Computer-Based Discovery in Federal Civil Litigation

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discovery, deposition testimony of Wyeth staff revealed that nearly 1,000 backup tapes

had been set aside for unrelated litigation. But by the time of the disclosure, tapes

covering a relevant four-month period had been destroyed in the routine course of

business.

The attorneys have an obligation to investigate their clients’ information management

system thoroughly to locate potentially relevant and discoverable material, no matter how

technically opaque that information system appear.21 Such an investigation goes well

beyond simply asking the client for the relevant files and trusting that the client itself has

a complete understanding of its own information technology infrastructure.

C. E-mail as a unique phenomenon

Electronic mail does not have a counterpart in the conventional paper-based world.

Several characteristics make e-mail particularly problematic. One is the sheer volume,

which can be staggering, even for a small company or individual.22 Another is the lack of

a coherent filing system, as e-mail systems are seldom designed for file management and

retrieval.23 Relevant business-related e-mail messages will be found side by side with

irrelevant and often very private personal e-mail messages. Perhaps the most important

characteristic of e-mail is the nature of the medium itself, which commentators in both

the popular press and the legal literature have noted is informal, breezy, and riddled with

slang, jargon, and jokes, even in the strictest business environments.24 These factors

combine to make retrieval of e-mail messages by topic difficult, even with computerbased word-searching, and screening for relevance and privilege costly and timeconsuming. But these characteristics of e-mail also make it a most attractive target for

discovery.25

Conventional document-intensive discovery may present problems of volume and

density, but generally the organizational system of paper files, where one exists, can be

understood without any special technical skill or knowledge. In computer-based

discovery, the e-mail system may initially appear as an unfathomable “black box.” The

attorneys should develop a clear understanding of their own clients' e-mail systems,

particularly the nature and extent of backup and archival files. They should also develop

an understanding of the methods available to search for relevant e-mail messages and an

idea of the numbers of messages that are likely to result from such a search. At the start

of discovery, counsel should meet and confer about the scope of anticipated e-mail

discovery. While the requesting party may want a broad scope to discovery, the realities

of budget and time constraints may dictate a narrower search. Both sides should try to

agree on an e-mail search protocol, including the sources, key words, names, and date

ranges to be searched to avoid disputes over the adequacy of production later.

The question of screening e-mail messages for attorney-client communication privilege,

attorney work-product protection, or other privileges before production deserves special

attention and may call for some creative negotiation. Large volumes of assorted,

undifferentiated text files are difficult to screen for privilege. Computer search

techniques may be used to roughly identify messages addressed to or authored by legal
Computer-Based Discovery in Federal Civil Litigation

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personnel, but the results of such searches will be far from precise. Manual review of the

messages by people is time consuming and costly, as well as stupefyingly dull. While the

seriousness of the consequences vary among the federal circuits, inadvertent production

of privileged e-mail messages may result in the waiver of the privilege in part or in

whole, against not only the immediate opponent but third parties as well. If the specter of

privilege waiver could be removed, the cost and time of e-mail production would be

reduced significantly.26 To facilitate discovery, the parties could negotiate an agreement

regarding inadvertent production of privileged e-mail messages and have it endorsed as

order from the court. By producing documents under such a court order, the parties may

limit their exposure to each other and to possible third parties.

D. Deleted documents

In the conventional paper-based world, once a document is shredded, incinerated, or

buried in a landfill, it is no longer subject to discovery as a practical matter. However, the

routine “deletion” of a computer-based document does not destroy the data. Hitting the

“delete” key merely renames the file in the computer, marking it available for overwriting

if that particular space on the computer’s hard disk is needed in the future. The data may

remain on the hard disk or on removable storage media for months or years, or may be

overwritten only partially.27

It is a relatively simple task for a computer forensics expert to restore routinely deleted

data, but it is expensive and the results are uncertain. Although the general rule is that

each party bears its own costs in discovery, restoration of routinely deleted records is

often conditioned on payment of some or all of the costs by the requesting party. 28

Aside from the occasional practice of “dumpster diving,” the discovery of deleted

computer documents does not have a close analogue in conventional, paper-based

discovery. Therefore, it represents a potential increase in the volume of discovery, with

associated increases in cost and delay. Although such discovery is within the scope of

the discovery rules, counsel should be prepared to demonstrate that it is necessary and

germane to the case. Before the Rule 16 pretrial conference, the attorneys should try to

agree on whether restoration of deleted data is expected, to what extent restoration will be

required, and who will bear the costs.

E. Backup tapes

Most businesses, as well as many individuals, periodically back up their data onto tapes

or disks for disaster recovery purposes. Often these tapes are kept for months or even

years. Data and documents that have been edited, deleted, or written over in the normal

course of business may be recovered from these tapes or disks.29 Backup tapes, however,

are not archives from which documents may easily be retrieved. The data on a backup

tape are not organized for retrieval of individual documents or files, but for wholesale,

emergency uploading onto a computer system. Therefore, the organization of the data

mirrors the computer's structure, not the human records management structure, if there is
Computer-Based Discovery in Federal Civil Litigation

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one. Special programs may be needed to retrieve specific information, and the process

may be costly and time consuming.30

Although the discovery of backup tapes is within the scope of the discovery rules, it has

the potential to increase the volume of discovery beyond what it would be in

conventional, paper-based discovery, with associated increased in costs and delay. As

with discovery of routinely deleted files, counsel should be prepared to demonstrate that

this discovery is necessary and germane to the case. And as with the discovery of deleted

files, retrieving documents from backup tapes may be conditioned on the requesting party

paying some or all of the costs. Before the Rule 16 pretrial conference, the attorneys

should agree on whether discovery of backup data is expected, to what extent it will be

required, and who will bear the costs.

F. Archives and legacy data

Ideally, archival electronic files should be organized for identification and retrieval of

individual documents or series of records. Ideally, as businesses, institutions, and

government agencies adopt new computer systems, the data from older systems should be

transferred to new media. In reality, such electronic records management processes are

primitive or non-existent in many organizations.31 It is common to find that:

• unorganized backup tapes are kept as a substitute for organized archival files

• old data are impossible to read using current hardware and software

• old data transferred to current media and format have lost important elements

necessary to establish context or authenticity.

As part of the initial disclosure process, attorneys should conduct a thorough survey of

their clients' electronic archives and so-called "legacy data" in outmoded formats or on

outmoded media. A realistic assessment must be made of the extent to which these files

will be subject to discovery and how much it will cost to make these files searchable. In

many cases, random samples of legacy data are restored and searched in order to

establish a statistically valid likelihood of finding relevant information. Based on such

statistics, balanced judgments can be made as to the value of the potential discovery

weighed against the anticipated costs.32

G. On-site inspection

Computer-based discovery makes on-site inspections under Rule 34(b) of the Federal

Rules of Civil Procedure particularly problematic. On the one hand, it may be necessary

to view the computer system in operation to make sure the discovery protocols are being

performed properly, to check the adequacy of security and chain of custody, or to

ascertain the provenance of computer records. On the other hand, the nature of computer

record storage and organization makes it virtually impossible to protect privileged or

trade secret information in the context of an on-site inspection, and any manipulation of

the computer by the opposing party, counsel, or expert may compromise the entire

process.
Computer-Based Discovery in Federal Civil Litigation

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In Gates Rubber Co. v. Bando Chemical Indus., Ltd.,33 a botched on-site inspection

resulted in the loss of possibly critical data by the party seeking discovery. Discovery

had been protracted and acrimonious in this trade secret theft case when the plaintiff

learned that an individual defendant had allegedly destroyed records on his computer.

The plaintiff obtained a “Site Inspection Order” designed to allow it complete access to

the defendants’ computers, while protecting the defendants’ rights to object to the

production of irrelevant or privileged materials. As a result, the plaintiff documented

several instances of what it characterized as destruction of evidence, but the magistrate

judge denied most of the plaintiff’s motion for sanctions, citing the behavior of the

plaintiff’s own expert. For instance, to examine one particularly important computer, the

expert used a program that erased, at random, 7 to 8 per cent of the information that

might otherwise have been available. The expert also failed to obtain and preserve the

creation dates of essential files and failed to use accepted computer evidence preservation

procedures.

In the past two years, federal courts have begun establishing a set of accepted computer

inspection procedures, based in part on the bitter lessons of Gates Rubber. Three recent

federal cases -- Playboy Enterprises, Inc. v. Welles,

 34 Northwest Airlines, Inc. v. Local

2000 International Brotherhood of Teamsters, AFL-CIO, et al.,35 and Simon Property

Group, L.P. v. MySimon, Inc.

36 – demonstrate this evolution. The procedure ordered by

the court in each of these cases was:

• The parties agree on a neutral, third-party expert who will actually carry out

the inspection as an officer of the court.

• The parties, with expert assistance, agree on the scope of the inspection,

including target computers or servers; target individuals, departments, or data

collections; date ranges; search terms; or other scope-defining criteria. They

also agree upon the form of eventual production.

• The expert creates a “mirror image” of the computer data using accepted

computer forensic procedures that preserve the integrity of the original

evidence.

• The expert executes the search on the “mirror image” and identifies relevant

data according to the agreed-upon specifications.

• The expert turns over the responsive data to the respondent’s counsel.

• Respondent’s counsel reviews the responsive data for relevance and privilege.

• Respondent’s counsel produces relevant, non-privileged data to the requesting

party in the form agreed upon by the parties.

These protocols help the parties set clear goals for computer-based discovery, help limit

the scope and cost, and may serve to protect legitimate privilege and privacy interests.

They also provide a mechanism for shifting some of the costs, for in all three cases cited

above the requesting party paid the expenses of the neutral expert.

The cost of an on-site inspection in terms of business disruption must be considered. It is

one thing to inspect a conventional file room or document warehouse. The use of paper
Computer-Based Discovery in Federal Civil Litigation

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files for short periods of time does not generally affect ongoing business operations.

However, the use of the business computer system to conduct a wide-ranging search may

require the business to shut down all operations completely. The protocols being

developed for on-site inspection of computer files, particularly the creation of a “mirror

image” of the data at the outset, help minimize business disruption.37

But the use of neutral experts has costs, too, and those costs must be weighed against the

potential benefits. In the Simon Property case, the cost of implementing the protocol

exceeded $200,000, and resulted in only a handful of new documents, none of which

were material to the outcome of the case. The victorious plaintiff’s application for costs

at the end of the case was denied, in part because the judge viewed the computer-based

discovery as unnecessary and duplicative.38 Parties may also believe that they need to

retain their own expert to review the work of the neutral expert, thus duplicating costs.

H. Form of production

In 1970, when Rule 34 of the Federal Rules of Civil Procedure was amended to include

discovery of “data compilations,” the typical and preferred response to a computer-based

discovery request was a printout of the computer data. In those days, few if any law

offices had computers, and the software necessary to translate and manipulate the data

was not mass marketed. Today, producing printouts of computer data is so unnecessary

that it might be considered an abusive tactic. Many computer-based documents, such as

relational databases and spreadsheets, are meaningless in printed form. The recipient is

forced to reenter the data or spend long hours performing manual analysis. To avoid

unnecessary costs and delay, courts have ordered production in electronic form even if it

duplicates prior paper production or involves the creation of tapes or disks that did not

hitherto exist.39

Today. electronic exchange of computer data is the preferred mode,40 but within that

mode, plenty of room exists for dispute over the exact format. With the assistance of

computer experts, the attorneys should establish common procedures and formats for the

production of electronic information at the outset of discovery.

I. Need for expert assistance

As demonstrated above, both parties engaged in computer-based discovery will need the

assistance of computer experts. This is costly, but in the long run may save costs and

time. Once the experts have had an opportunity to assess their respective parties’

computer systems and capabilities, they will be in a much better position than the

attorneys to negotiate the technical aspects of conducting discovery, including search

protocols, privilege and relevance screening, and production. Often the lawyers can be

taken out of the picture entirely. In many cases, the experts on opposing sides have met

and worked out agreements on the exchange of computer system information, the

procedures for inspection, the search terms each side will use, and other details best left

to those with technical knowledge and experience.41
Computer-Based Discovery in Federal Civil Litigation

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III. Judicial Management Tools for Computer-Based Discovery

It is not the judge’s role to dictate solutions to these thorny technical problems unless the

parties reach an impasse. But to avoid an impasse, the judge must make sure the attorneys

on both sides face these issues squarely, negotiate solutions, and follow through. Several

tools are available to help judges manage computer-based discovery, limit costs and

delay, and, if necessary, resolve discovery disputes.

A. Early exchange of computer system information

At the outset of litigation, before any document or computer-based discovery is initiated,

the attorneys should be encouraged to exchange information about their clients’

respective computer systems. One of the most frustrating experiences for a judge, and an

all-too-common one, is to conduct a pretrial conference with opposing counsel who do

not know what their client has or can produce in discovery. In all fairness, attorneys

cannot be expected to become computer experts for the purposes of discovery and should

not do so. The judge can inject reality into the discovery planning process by

encouraging communication between the people who actually know their respective

computer systems. An informal meeting between the opposing sides’ computer experts

will probably accomplish more than a meeting of the lawyers. Such a meeting may need

a neutral moderator and blanket privilege protection, similar to a settlement negotiation

or mediation.

The information each side needs to know includes identifying which computer systems

are in place at the moment, which computer systems were in place during the period of

time relevant to anticipated discovery, the extent of the computerized information

(including backups and archives) that will need to be searched in the course of discovery,

the capabilities of each party to perform searches and produce material in a useable

format, and the measures being taken to secure and preserve potential computer evidence.

If the parties insist on a formal, adversarial approach, the judge can allow each side to

depose the opposing party’s most knowledgeable computer person under Rule 30(b)(6) of

the Federal Rules of Civil Procedure. Although Rule 26(d) generally does not allow

formal discovery before the parties met and conferred under Rule 26(f), the judge has the

power to order such preliminary discovery as may be necessary to lay the foundation for

a productive Rule 26(f) meeting and subsequent Rule 16(c) pretrial conference.

B. Rule 16(c) pretrial conference agenda

Perhaps the most important judicial management tool in computer-based discovery cases

is the Rule 16(c) pretrial conference. Rule 16(c) of the Federal Rules of Civil Procedure

lists several issues that may be addressed during the pretrial conference, but a judge may

supplement that list with additional points on computer-based discovery and issue a

memo to the attorneys before the conference, preferably at the outset of the litigation.

There is a risk associated with such a procedure: The judge may alert counsel to issues

that they had not considered, inadvertently expanding the scope of discovery. But given
Computer-Based Discovery in Federal Civil Litigation

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that computer-based discovery and its associated issues will become the norm, not the

exception, in the future, this risk may be small.

The Appendix to this article is a checklist of possible agenda items and questions about

computer-based discovery for a Rule 16(c) pretrial conference. It represents a maximalist

approach, and should be scaled to fit the needs of the particular case, the resources of the

parties, and the litigating styles of the attorneys involved.

C. Rule 26(a)(1) initial disclosures

On 1 December 2000, initial disclosure became the rule throughout the federal court

system, except for cases so small and routine that they normally involve little or no

discovery of any type.42 Under initial disclosure, first adopted as an optional rule in 1993,

the parties must unilaterally disclose the existence of relevant documents and other

categories of information before receiving a discovery request. However, in proposing to

make the initial disclosure requirement uniform across the nation, the Civil Rules

Advisory Committee also included a major compromise with disclosure opponents in the

organized bar. The scope of document disclosure found in the current Rule 26(a)(1)(B)

was narrowed from documents “relevant to disputed facts alleged with particularity in the

pleadings” to documents “the disclosing party may use to support its claims or defenses.”

In the same round of amendments, the Committee reinforced Rule 37(c)(1) to make it

clear that a party is not permitted to use evidence at trial, at a hearing, or on a motion that

was not disclosed initially or included in an original or amended discovery response. The

Advisory Committee Note to the 2000 Amendment of Rule 26 states that this serves to

bolster the requirement that denials in pleadings be “warranted on the evidence” under

Rule 11(b)(4).43

While Rule 26 initial disclosure may be viewed primarily as a device to expedite

attorney-managed discovery, it may also be viewed as a judicial management and dispute

resolution device. Where the Rule 26 initial disclosure requirement was in effect before 1

December 2000, it forced attorneys to investigate the factual basis of their case or defense

early, before the first Rule 16 scheduling conference, allowing them to provide the judge

with a much clearer picture of what formal discovery in the case might involve.44

The narrowed scope of the current Rule 26 disclosure does not eliminate that advantage.

In a world in which most documentary evidence will be computer-based, initial

disclosure under Rule 26(a)(1) requires that attorneys undertake a reasonable

investigation of their clients’ computer files and disclose computer-based evidence that

they may use to the support their claims or defenses. Failure to do so in a timely manner

may preclude them from mounting any effective case or defense. Instead of entering the

Rule 16 pretrial conference ignorant (perhaps blissfully) of their clients’ computer

systems, they must meet with opposing counsel, confer, and exchange initial disclosure

of computer-based evidence, even if that evidence is largely self-serving, or face

sanctions under Rule 37(c)(1). In addition, if counsel discloses computer-based evidence,

he or she may be under an obligation to disclose relevant aspects of the source computer

system, including such important matters as the location of the disclosed computer files,
Computer-Based Discovery in Federal Civil Litigation

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backup and archiving procedures assuring that the disclosed information will be available

for production, and the extent to which the disclosed information may need to be

recovered from legacy or deleted files. At the very least, counsel should be prepared to

face later discovery on these issues.

Although Rule 26 initial disclosure statements will seldom if ever filed with the Court,

they will undoubtedly become a subject of discussion in the Rule 16(c) pretrial

conference if the parties fail to reach an agreement on the scope and conduct of discovery

beforehand. As such, they may enable a judge to make a more informed decision if asked

to expand or limit the scope of discovery, compel or protect production of particular data,

weigh the benefits and burdens of discovery, or shift discovery costs.

D. Proportionality

Under Rule 26 of the Federal Rules of Civil Procedure, the trial court has the power to

limit discovery “if the burden or expense of the proposed discovery outweighs its likely

benefit.” This language was added 1983 to combat “excessively costly and timeconsuming activities that are disproportionate to the nature of the case, the amount

involved, or the issues or values at stake ...[by] giving the court authority to reduce the

amount of discovery that may be directed to matters that are otherwise proper subjects of

inquiry.” Ten years later, the Advisory Committee made further amendments and

created the current Rule 26(b)(2)(i), (ii), and (iii),45 citing the “information explosion of

recent decades [which] has greatly increased both the potential cost of wide-ranging

discovery and the potential for discovery to be used as an instrument of for delay or

oppression.” Just to make sure no one misses the point, the 1 December 2000

amendments added yet further language to Rule 26(b)(1), reminding litigants that “all

discovery is subject to the limitations imposed by subdivision (b)(2)(i), (ii), and (iii).”

If extraordinary discovery efforts, such as on-site computer inspection or the recovery of

deleted data, are not justified by some showing that the efforts are likely to result in the

production of relevant and material information, it is within the judge’s discretion to limit

such discovery. In Fennell v. First Step Designs,

46 the plaintiff warehouse worker

claimed she was discharged for making allegations of sexual harassment. The defendant

employer countered that her layoff was part of a routine seasonal layoff of a number of

employees, and offered as evidence a memorandum listing her name with other

employees scheduled for termination. The memo was dated before her sexual harassment

allegation and corroborated by testimony from three managers, but the plaintiff claimed

the memo was a forgery. She proposed inspection of the employer’s computer system,

on which the memo was created, for evidence supporting her claim. The proposed

discovery was denied after the parties could not agree on a protocol that would

reasonably determine whether the memorandum had been altered as the plaintiff claimed,

appropriately limit the scope of computer-based discovery to protect privilege, and

prevent a “fishing expedition” for unrelated evidence.

It should be noted that the computer inspection in Fennell was proposed in the context of

a pending Rule 56 summary judgment motion after formal discovery was closed, and the
Computer-Based Discovery in Federal Civil Litigation

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appeals court based its decision on the procedural posture of the case as well as the merits

of the proposed discovery. But the appellate court cited both Rule 56(f) and Rule

26(b)(2)(iii), and went into considerable detail on the proposed computer inspection

protocol, the risks and cost involved, and the likelihood that the proposed discovery

would not result in any significant new information, concluding that the trial judge did

not abuse his discretion in denying the plaintiff’s request.47

Rule 26(b)(2)(iii), which provides judges with the power to limit burdensome discovery,

may also be invoked by the court to compel discovery and fashion a computer-based

discovery protocol. One of the most recent reported computer-based discovery cases to

cite Rule 26(b)(2)(iii), Simon Property Group, L.P. v. MySimon, Inc.48 represents a step in

the process initialed in Playboy Enterprises, Inc. v. Welles 49 (which also cited Rule

26(b)(2)(iii)), and refined in Northwest Airlines, Inc. v. Local 2000 International

Brotherhood of Teamsters, et al.50 All three of these cases allowed discovery to proceed

under a narrowly-crafted protocol, designed to protect the respondents’ rights to object to

the actual production of irrelevant or privileged material.

If the court is convinced that extraordinary discovery efforts are justified but costly, a

motion to compel or a negotiated protocol may be conditioned on the party seeking

discovery bearing the costs. But the recent debates of the Civil Rules Advisory

Committee and the Judicial Conference over cost-bearing, discussed in the following

section, indicate a grave concern that monetary cost not be the overriding factor in the

proportionality consideration.

E. Cost-bearing

The normal rule in document discovery is that each side bears its own costs. The court

has the inherent power to shift such costs to the discovery proponent, balancing the needs

of justice with the resources of the parties. During the most recent round of rules

amendment discussions there was an effort on the part of the Advisory Committee on

Civil Rules to codify this inherent power. In 1998, it published a proposed amendment to

Rule 34, which governs document requests. The proposed amendment to Rule 34(b)

would have added the sentence:

On motion under Rule 37(a) or Rule 26(c), or on its own motion, the court shall –

if appropriate to implement the limitations of Rule 26(b)(2)(i), (ii), or (iii) – limit

the discovery or require the party to pay part or all of the reasonable expenses

incurred by the responding party.51

During 1999, this proposed new language was modified and moved to Rule 26(b)(2),

immediately preceding the proportionality considerations of Rule 26(b)(2)(i), (ii), and

(iii), thus linking proportionality and cost-bearing.52

There was vigorous debate in the Advisory Committee over this amendment. While

acknowledging the courts’ inherent power to shift costs, the opponents stated that this

should not be explicitly encouraged, particularly in the context of a rule on
Computer-Based Discovery in Federal Civil Litigation

13

proportionality, as it could have the dual effect of expanding the scope of discovery

available to those who can afford it, while restricting the scope of discovery for those

who could not. The Justice Department commented that the amendment might encourage

judges to order that the United States pay for discovery that it would previously have

been entitled to under the usual cost-bearing rule.53

Computer-based discovery played an important part in the argument on cost-bearing . As

stated in the Advisory Committee’s Minutes,

A plaintiff, for example, may want to “map” a defendant’s e-mail system, a

measure that might cost $250,000; the question of responsibility for paying for

such discovery is an important one, and it should be made clear that judges have

authority to consider the question directly. [Advisory Committee Member Myles

V. Lynk] suggested that lawyers are prepared now to argue about paying the

costs of electronic discovery; this explicit rule provision is not needed for that

reason. 54

The proposed amendment was approved by the Advisory Committee by a vote of eight to

five.55 However, it was rejected by the full Judicial Conference56 and was not included in

the package of amendments that went into effect on 1 December 2000. There is no

indication that this action represented a rejection of the concept of cost-bearing by either

the Judicial Conference or the Supreme Court. As stated by both sides of the debate at

the Advisory Committee level and reflected in the Judicial Conference’s consideration of

the issue, the courts have inherent powers to manage discovery, including the power to

condition discovery in some cases upon the bearing of costs.57

Computer-based discovery may involve extraordinary costs that are clearly outside the

usual cost of doing business. In Anti-Monopoly v. Hasbro,

58 the defendant stated that the

data requested by the plaintiff could be extracted from its database only by special

programming techniques. Otherwise, the defendant would be forced to give entire

database over to a competitor. The court required the plaintiff to pay the defendant’s

reasonable costs to produce data in computerized form. In the recent line of cases

involving computer inspection protocols culminating in Simon Property Group, L.P. v.

MySimon, Inc. 59 costs were shifted by virtue of requiring the party seeking discovery to

assume the expense of the computer expert, even though that expert was a neutral officer

of the court.

F. Special master or court-appointed expert

Under Rule 53 of the Federal Rules of Civil Procedure and Rule 706 of the Federal Rules

of Evidence, the judge has the power to appoint a neutral expert to act as a special master

or as an expert in computer-based discovery. If the parties cannot provide their own

expert, or if the situation is contentious, the judge may appoint a neutral third party to

break an impasse, supervise technical aspects of discovery, or act as a secure repository

for sensitive or disputed data. Courts may understandably be reluctant to utilize an neutral
Computer-Based Discovery in Federal Civil Litigation

14

expert or special master. Rule 53 itself discourages the practice.60 But even a suggestion

by the judge to bring in a neutral expert may help bring the attorneys to an agreement.

While court-appointed experts may help in large-scale or contentious computer-based

discovery, they may be absolutely necessary in on-site computer inspections. In Gates

Rubber Co. v. Bando Chemical Indus., Ltd.61 the parties each appointed their own expert,

with varying degrees of competence, and the results were counter-productive. Simon

Property Group, L.P. v. MySimon, Inc.62 and the cases cited therein reflect the evolution

of the courts’ use of experts to conduct on-site computer-based discovery. The use of

court-appointed neutral experts in these may represent the “state of the art” in discovery

management. But is also represents a major step in the ongoing evolution of the role of

the judge in discovery, from bystander and occasional referee to active manager, and

many judges may have reservations about taking that step.

Conclusion

Computer-based discovery has the potential to reduce costs and shorten the length of civil

litigation, although it is widely viewed by the legal profession as costly, time-consuming,

and more complicated than conventional discovery. Most observers believe that in spite

of its costs, computer-based discovery will eventually overtake conventional discovery,

as more and more information is routinely generated, transmitted, and stored on

computers. Many of the costs associated with computer-based discovery are avoidable

through proper management of the discovery process, particularly early identification of

potential problems and their solutions. Unless and until attorneys develop more

familiarity with computer-based discovery, judges can take the lead by utilizing existing

case management techniques, particularly by setting the Rule 16(c) pretrial conference

agenda, creatively sequencing discovery events, and limiting or shifting discovery costs.

In contentious situations where potentially intrusive inspection of computer facilities and

files is demanded, judges may assume an even broader managerial role.
Computer-Based Discovery in Federal Civil Litigation

15

APPENDIX A

A Rule 16(c) Pretrial Conference Agenda

for Computer-Based Discovery

The following checklist represents a maximalist approach. It should be scaled to fit the

needs of the particular case, the resources of the parties, and the litigating styles of the

attorneys involved.

I. When is a Detailed Rule 16 Notice Most Appropriate?

• When the substantive allegations involve computer-generated records, e.g., software

development, e-commerce, unlawful Internet trafficking, etc.

• When the authenticity or completeness of computer records is likely to be contested

• When a substantial amount of disclosure or discovery will involve information or

records in electronic form, e.g., e-mail, word processing, spreadsheets, and databases

• When one or both parties is an organization that routinely used computers in its dayto-day business operations during the period relevant to the facts of the case

• When one or both parties has converted substantial numbers of potentially relevant

records to digital form for management or archival purposes

• When expert witnesses will develop testimony based in large part on computer data

and/or modeling, or when either party plans to present a substantial amount of

evidence in digital form at trial

• In any potential “big document” case in which cost associated with managing paper

discovery could be avoided by encouraging exchange of digital or imaged documents

(especially if multiple parties are involved)

The purpose of a detailed Rule 16 notice is to save the parties time and expense by

anticipating the most common issues of computer-based discovery, developing a

reasonable discovery plan, and avoiding unnecessary conflict. A detailed Rule 16 notice

would not be appropriate if, in the opinion of the judge, the notice might serve to alarm

the parties needlessly, raise unreasonable expectations or demands, or encourage the

parties to engage in wasteful discovery.

II. Preservation of Evidence

A. What steps have counsel taken to ensure that likely discovery material in their

clients’ possession (or in the possession of third parties) will be preserved until the

discovery process is complete? If counsel have not yet identified all material that should

be disclosed or may be discoverable, what steps have been taken to ensure that material

will not be destroyed or changed before counsels’ investigations are complete?

If more specific direction is needed:
Computer-Based Discovery in Federal Civil Litigation

16

B. Have counsel identified computer records relevant to the subject matter of the

action, e.g.,

• Word processing documents, including drafts or versions not necessarily in paper

form

• Databases or spreadsheets containing relevant information

• E-mail, voicemail, or other computer-mediated communications

• Relevant system records, such as logs, Internet use history files, and access records

C. Have counsel located the following computer records:

• Active computer files on network servers

• Computer files on desktop or local hard drives

• Backup tapes or disks, wherever located

• Archival tapes or disks, wherever located

• Laptop computers, home computers, and other satellite locations

• Media or hardware on which relevant records may have been “deleted” but are

recoverable using reasonable efforts

D. Have counsel made sure all relevant computer records at all relevant locations are

secure, e.g.,

• Suspended all routine electronic document deletion and media recycling

• Segregated and secured backup and archival media

• Created “mirror” copies of all active network servers, desktop hard drives, laptops,

and similar hardware

E. Have counsel considered entering into an agreement to preserve evidence?

F. Does either party plan to seek a preservation order from the court?

III. Disclosure and Preliminary Discovery

A. Have counsel designated technical point-persons who know about their clients’

computer systems to assist in managing computer records and answering discovery

requests?

B. Have counsel prepared a description of their respective parties’ computer systems

for exchange? Does either party need to know more before discovery can proceed?

If, after considering whether the hints in the following list may do more harm than good,

the judge determines that the parties are unclear as to what they need to know at this

stage and should get further guidance, the judge may suggest that they exchange

information on the following points:

• Number, types, and locations of computers currently in use
Computer-Based Discovery in Federal Civil Litigation

17

• Number, types, and locations of computers no longer in use, but relevant to the facts

of the case

• Operating system and application software currently in use

• Operating system and application software no longer in use, but relevant to the facts

of the case

• Name and version of network operating system currently in use

• Names and versions of network operating systems no longer in use, but relevant to

the facts of the case

• File-naming and location-saving conventions

• Disk or tape labeling conventions

• Backup and archival disk or tape inventories or schedules

• Most likely locations of records relevant to the subject matter of the action

• Backup rotation schedules and archiving procedures, including any backup programs

in use at any relevant time

• Electronic records management policies and procedures

• Corporate policies regarding employee use of company computers and data

• Identities of all current and former personnel who had access to network

administration, backup, archiving, or other system operations during any relevant

time

C. Do counsel anticipate the need to notice any depositions or propound any

interrogatories to obtain further information about the opposing party’s computer systems

or electronic records management procedures?

D. Have counsel explored with their clients (in appropriate situations) the procedures

and costs involved to:

• Locate and isolate relevant files from e-mail, word processing, and other collections

• Recover relevant files generated on outdated or dormant computer systems (so-called

“legacy data”)

• Recover deleted relevant files from hard drives, backup media, and other sources

E. Do counsel anticipate the need to conduct an on-site inspection of the opposing

party’s computer system?

• Consideration of an agreed-upon protocol

• Permission to use outside experts

• Agreement on neutral expert

IV.Electronic Document Production

A. Will counsel use computerized litigation support databases to organize and store

documents and other discovery material?

B. Have counsel considered common formats for all electronic document exchange,

e.g., TIFF images with OCR-generated text, e-mail in ASCII format, etc.?
Computer-Based Discovery in Federal Civil Litigation

18

C. Have counsel (particularly in multi-party cases) considered a central electronic

document repository?

D. Have counsel considered an attorney-client privilege non-waiver agreement, to

avoid the costs associated with intensive privilege screening before production?

E. Do counsel anticipate requesting data in non-routine format, e.g.,

• Printing by respondent of electronic documents not normally in print form

• Creation by respondent of customized database reports

• Performance by respondent of customized searches or data mining

F. Have counsel agreed upon cost allocation outside the usual rule that parties absorb

their own disclosure costs, e.g.,

• Requesting parties will pay non-routine data retrieval and production costs

• Parties will negotiate data recovery and legacy data restoration costs

G. Does either party anticipate objecting to the production of computer records or

software necessary to manipulate the records based on:

• Trade secret

• Licensing restrictions

• Copyright restrictions

• Statutory or regulatory privacy restrictions

V. Testifying Experts

A. Will any testifying expert(s) rely on computer data provided by either party, or

rely on his or her own data?

B. Will any testifying expert(s) use custom, proprietary, or publicly-available

software to process data, generate a report, or make a presentation?

C. Do counsel anticipate requesting discovery of either the underlying data or the

software used by any testifying expert?

VI. Anticipating Evidentiary Disputes

Have counsel considered discovery procedures designed to reduce or eliminate questions

of authenticity, e.g.,
Computer-Based Discovery in Federal Civil Litigation

19

• Computer discovery supervised by neutral party

• Neutral, secure electronic document repository

• Exchange of read-only disks or CD-ROMs

• Chain-of-custody certifications
Computer-Based Discovery in Federal Civil Litigation

20

Endnotes

1. Kenneth J. Withers is a Research Associate at the Federal Judicial Center,

Washington D.C. The opinions expressed in this article are those of the author and

not necessarily those of the Federal Judicial Center or any other agency of the United

States Courts. The author thanks Chief Magistrate Judge Robert Collings of the

District of Massachusetts for suggesting the creation of a Rule 16 agenda for

computer-based discovery, and Prof. Thomas D. Rowe, Jr. of Duke University School

of Law for his tough but benevolent editorial review of an earlier version of this

paper. Any errors or omissions, however, are attributable solely to the author.

2. In a recent survey of participants at an American Bar Association meeting, 70% of

respondents stated that they believed the use of technology in discovery, particularly

computer forensics and review of electronic information, will be “increasing

dramatically” in the future. PricewaterhouseCoopers/Section of Litigation of the

American Bar Association Pulse Survey (15 May 2000) (copy on file with the

author).

3. During the summer of 2000, researchers at the Federal Judicial Center sent surveys on

computer-based discovery to 400 federal magistrate judges and had received 115

replies. 71 magistrate judges reported that they were aware of computer-based

discovery activity in the civil cases assigned to them. Most, but not all, reported

disputes arising from discovery. 27 reported fewer disputes coming to their attention

than the number of cases in which there was computer-based discovery, implying that

some cases presented no discovery disputes. Ten reported no disputes at all

associated with computer-based discovery. Four magistrate judges expressly

commented that computer-based discovery had presented no unique problems, and

one judge made the observation that he may have more cases involving computerbased discovery than those of which he is aware. Federal Judicial Center, Survey Of

United States Magistrate Judges On Experiences With Discovery Of Computer-Based

Evidence (June/July 2000) (survey returns and preliminary analysis on file with the

author).

4. British lawyers seem to be quite conscious of this opportunity. See, e.g., Lucinda

Acland, Data Exchange Agreements in Litigation: The Impact of the Woolf Reforms,

SCL Electronic Magazine (Society for Computers and Law), April/May 1999 at

http://www.scl.org/scl/emag/emagazine/vol10/iss1/col10-iss1-lucinda-acland-art.htm.

5. Lawrence Argon, E-mail Is Not Beyond the Law, PC Week, 6 October 1997 at 111

(the cost of reviewing ten years worth of data in a recent case was over $500,000);

Kim Nash, Computer Detectives Uncover Smoking Guns, ComputerWorld, 9 June

1997 at 1A (twelve months of e-mail generated by 50 people will cost between

$60,000 and $75,000 to examine).

6. See, e.g., Linnen v. A.H. Robins Co., 1999 WL 462015 (Mass. Super. Ct.), in which

the defendant was ordered to bear all fees and costs associated with computer-based
Computer-Based Discovery in Federal Civil Litigation

21

discovery based on its failure, “be it unintended or willful,” to respond adequately to

the plaintiff’s discovery requests for e-mail from back-up tapes. Id. at 8. See also

GFTM, Inc. et al. v. Wal-Mart Stores, Inc., 2000 WL 335558 (S.D.N.Y.), in which

the defendant was sanctioned for counsel’s initial representation that requested

computer data did not exist, contradicted a year later by deposition testimony that the

data existed when they were requested, but were subsequently destroyed.

7. Kenneth J. Withers, Is Digital Different? Electronic Discovery and Disclosure in

Civil Litigation (literature review prepared for the British Irish Legal Education

Technology Association, 30 December 1999) at

http://www.kenwithers.com/articles/bileta/.

8. In the Federal Judicial Center survey cited in endnote 3, 14 of the 71 judges who

reported computer-based discovery activity in the cases assigned to them reported

“significant cost savings” over conventional discovery in some or all of those cases.

9. In the nationwide breast implant litigation, MDL-926, conversion of just one-third of

the discovery documents and court papers to computer form resulted in an estimated

savings of $1,146,500 in copying costs per party requesting a complete set of the

documents. E-mail message from Tina J. Crowe, Supervisor, National Multidistrict

Litigation Document Repository, to Kenneth J. Withers (27 April 2000) (on file with

the author). This savings potential has also been noted in British civil litigation,

Grupo Torras v. Sheik Fahad Mohammed al Sabah [1998] Masons Computer L. Rpts.

90.

10. Mark D. Robins, Computers and the Discovery of Evidence: A New Dimension to

Civil Procedure, 17 J. Marshall J. of Computer and Info. L. 411, 419 (1999).

11. J. Roger Tamer, Preparing for Electronic Discovery, N.Y.L.J., 25 January 1999, at

S5.

12. Gregory S. Johnson, A Practitioner’s Overview of Digital Discovery, 33 Gonz. L. R.

347, 360 (1998).

13. James H. A. Pooley and David M. Shaw, Finding Out What’s There: Technical and

Legal Aspects of Discovery, 4 Tex. Intell. Prop. L. J. 57, 60 (1995).

14. In the Microsoft antitrust litigation, the task of quantifying potential damages was

simplified by the court granting the Department of Justice direct access to Microsoft’s

computerized sales and pricing data. Kim S. Nash and Patrick Thibodeau, What’s In a

Database? Microsoft Sales Evidence: Court Allows DOJ to Check Files in Redmond,

Computerworld, 19 October 1998, at 4.

15. John Jessen, CEO, Electronic Evidence Discovery, Inc., speaking at Glasser

LegalWorks 3d Annual Conference on Electronic Discovery, San Francisco (24

March 2000).
Computer-Based Discovery in Federal Civil Litigation

22

16. 179 F.R.D. 622 (D. Utah 1998).

17. Michael R. Overly, Electronic Evidence in California (1999) 2-31 (a three-page

checklist summarizes the preceding chapter on “Sources of Electronic Evidence”).

18. A 1998 survey conducted by the American Bar Association and the American

Corporate Counsel Association indicated that while 92% of respondents’ corporations

stored records in electronic form, just under 40% had electronic records management

programs, and only 28% monitored compliance. Thomas J. Smedinghoff,

ABA/ACCA Survey of Electronic Commerce Practices (1998) (on file with the

author). A more recent survey of litigation attorneys by the American Bar Association

and PricewaterhouseCoopers indicated that only 11.5% of the respondents’ corporate

clients had “an electronic data classification mechanism that allows one to quickly

locate data relevant to a particular area of litigation.”

PricewaterhouseCoopers/Section of Litigation of the American Bar Association Pulse

Survey, Digital Discovery and Its Importance on the Practice of Litigation (15 May

2000) (on file with the author). Based on his own survey of practices in corporations

and government agencies, Prof. David A. Wallace of the University of Michigan

School of Information stated that the need to develop electronic records management

systems is the “single most important priority” for the recordkeeping professions.

David A. Wallace, Recordkeeping and Electronic Mail Policy: The State of Thought

and the State of the Practice, (paper prepared for the 1998 Annual Meeting of the

Society of American Archivists) at http://www.rbarry.com/dwallace.html.

19. Alan Gahtan, Electronic Evidence (1999), 70.

20. 1999 WL 462015 (Mass. Super. Ct.).

21. “While the court certainly recognizes the significant cost associated with restoring

and producing responsive communications from these tapes, it agrees with the

District Court for the Northern District of Illinois In re: Brand Name Prescription

Drugs Antitrust Litigation that this is one of the risks taken on by companies which

have made the decision to avail themselves of the computer technology now available

to the business world... To permit a corporation such as Wyeth to reap the business

benefits of such technology a simultaneously use that technology as a shield in

litigation would lead to incongruous and unfair results.” Id. at 6, citing In re Brand

Name Prescription Drugs Antitrust Litigation, 1995 WL 360525 (N. D. Ill.); see also

GFTM, Inc. v. Wal-Mart Stores, Inc., supra note 6.

22. One Internet market research company estimates that the average American processes

26.4 messages per day, one-third of which (8.8 per day) they generate. EMarketer

Tallies the Number of E-Mail Messages Sent, Emarketer (1 February 2000). If 100

employees of a business generate 8.8 messages per day, 5 days a week, for 48 weeks

per year (allowing for vacations and holidays), the business will accumulate 211,200

messages annually, not counting copies or backups.
Computer-Based Discovery in Federal Civil Litigation

23

23. Wallace, supra note 18.

24. This phenomenon was noted early in the development of computer-mediated business

communication. Jolie Solomon, Workplace: As Electronic Mail Loosens Inhibitions,

Impetuous Senders Feel Anything Goes, Wall Street Journal, 12 October 1990, at B1.

25. See generally Samuel A. Thumma & Darrel S. Jackson, The History of Electronic

Mail in Litigation, 16 Santa Clara Computer and High Technology Law Journal 1

(1999). For a popular analysis of the factors that make e-mail both attractive and

problematic, see David S. Bennehum, Daemon Seed: Old E-mail Never Dies, Wired,

May 1999, at 100.

26. Texas has a new rule that may serve as a model for such an agreement in other

jurisdictions. Rule 193.3(d) of the Texas Rules of Civil Procedure, adopted in 1999,

states, “Privilege not waived by production. A party who produces material or

information without intending to waive a claim of privilege does not waive that claim

under these rules or the Rules of Evidence if – within ten days or a shorter time

ordered by the court, after the producing party actually discovers that such production

was made – the producing party amends the response, identifying the material or

information produced and stating the privilege asserted. If the producing party thus

amends the response to assert a privilege, the requesting party must promptly return

the specified material or information and any copies pending any ruling by the court

denying the privilege.”

27. For an examination of the typical state of computer files subject to discovery and the

role of the computer forensics expert, see Andy Johnson-Laird, Smoking Guns and

Spinning Disks, 11 Computer Law. 1 (1994).

28. This cost-bearing shift is codified in Texas R. Civ. P. 196.4, which states in part: “If

the responding party cannot – through reasonable efforts—retrieve the data or

information requested or produce it in the form requested, the responding party must

state an objection complying with these rules. If the court orders the responding party

to comply with the request, the court must also order that the requesting party pay the

reasonable expenses of any extraordinary steps required to retrieve and produce the

information.” It also forms the basis of the August 1999 American Bar Association

Section of Litigation’s Civil Discovery Standards 29(b)(iii).

29. Johnson-Laird, supra note 27 at 2.

30. Bruce Rubinstein, Electronic Discovery Costs are Leveraging Settlements, Corporate

Legal Times, September 1997, at 26.

31. See supra note 18.
Computer-Based Discovery in Federal Civil Litigation

24

32. Such a procedure was used in the Phen-Fen multidistrict litigation, In re Diet Drugs

Products Liabilities Litigation, MDL 1203 (E.D. Pa. 1999), Letter from Eric Rubel to

Michael D. Fishbein (21 April 1999) (on file with the author) (agreement between

Plaintiffs’ Management Committee and defendant American Home Products

concerning the restoration of sample backup tapes).

33. 167 F.R.D. 90 (D. Colo. 1996).

34. 60 F. Supp. 2d 1050 (S.D. Cal. 1999).

35. Civil Action No. 00-08 (D. Minn. Feb, 2, 2000) (Order on Defendants’ Motion for

Protective Order and Plaintiff’s Motion to Compel Discovery).

36. 194 F.R.D. 639 (S.D. Ind. 2000).

37. For a step-by-step explanation of the technical process of examining a computer on

site, see Joseph Kashi, How To Conduct On-site Discovery of Computer Records,

Law Prac. Mgmt., March 1998, at 26.

38. Telephone conversation with Judge David F. Hamilton, October 2, 2000 (notes on

file with the author), see also Simon Property Group, L.P. v. MySimon, Inc., 2001

WL 55408 (S.D. Ind.).

39. See, e.g., Adams v. Dan River Mills, Inc., 54 F.R.D. 220 (W.D. Va. 1992); In re Air

Crash Disaster at Detroit Metropolitan Airport, 130 F.R.D. 634 (E.D. Mich. 1989);

American Brass v. United States, 699 F. Supp. 934 (Ct. Int’l Trade 1988); AntiMonopoly v. Hasbro, 1995 WL 649934 (S.D. N.Y); Nat’l Union Elec. Corp. v.

Matsushita Elec. Indus. Co, 494 F. Supp. 1257 (E.D. Pa. 1980); Storch v. IPCO

Safety Products Co., 1997 U.S.Dist. LEXIS 10118 (E.D. Pa).

40. Adams v. Dan River Mills, Inc., 54 F.R.D. 220 (W.D.Va. 1972); Nat’l Union Elec.

Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1257 (E.D. Pa. 1980); Gahtan,

supra note 19, at 15; Kashi, supra note 36, at 33; Overly, supra note 17, at 3-6;

Michael J. Patrick, An Attorney’s Guide to Protecting, Discovering, and Producing

Electronic Information (1995), 4:13.

41. At a recent “mini-conference” on computer-based discovery issues sponsored by the

Discovery Subcommittee of the Civil Rules Advisory Committee of the Judicial

Conference of the United States held at Hastings College of Law in San Francisco on

27 March 2000, panelists Joan Feldman and Andy Johnson-Laird commented that

experts from opposing sides will often meet and confer on discovery logistics.

42. The narrow exceptions may be found at Fed. R. Civ. P. 26(a)(1)(E)(i) – (viii).

43. H. R. Doc. No. 106-228, at 120 (2000).
Computer-Based Discovery in Federal Civil Litigation

25

44. See e.g., Conley & Hodge Associates, Manual for Pre-Discovery Disclosure (1994),

interpreting the local rules and practice in the District of Massachusetts, which

closely followed Fed. R. Civ. P. 26 as adopted in 1993.

45. Fed. R. Civ. P. 26(b)(2) reads as follows: “(2) Limitations. By order, the court may

alter the limits in these rules on the number of depositions and interrogatories or the

length of depositions under Rule 30. By order or local rules, the court may also limit

the number of requests under Rule 36. The frequency or extent of the use of

discovery methods otherwise permitted under these rules and by any local rule shall

be limited by the court if it determines that: (i) the discovery sought is unreasonably

cumulative or duplicative, or is obtainable from some other source that is more

convenient, less burdensome, or less expansive; (ii) the party seeking discovery has

had ample opportunity by discovery in the action to obtain the information sought; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit,

taking into account the needs of the case, the amount in controversy, the parties’

resources, the importance of the issues at stake in the litigation, and the importance of

the proposed discovery in resolving the issues. The court may act upon its own

initiative after reasonable notice or pursuant to a motion under Rule 26(c).”

46. 83 F. 3d 526 (1st Cir. 1996).

47. Id. at 534.

48. 194 F.R.D. 639, 640 (S. D. Ind. 2000).

49. 60 F. Supp. 2d 1050, 1054 (S.D. Cal. 1999).

50. Civil Action No. 00-08 (D. Minn. Feb, 2, 2000) (Order on Defendants’ Motion for

Protective Order and Plaintiff’s Motion to Compel Discovery).

51. Committee on Rules of Practice and Procedure, Report of the Advisory Committee on

Civil Rules, Agenda Item 6, Page 94 (14-15 June 1999) (on file with the author).

52. Committee on Rules of Practice and Procedure, Report of the Advisory Committee on

Civil Rules, Agenda Item 6, Page 75 (14-15 June 1999) (on file with the author).

53. Minutes of the Civil Rules Advisory Committee, 19-20 April 1999, 1999 WL

1702844, 26-29. This document is also available on the Internet at

<http://www.uscourts.gov/rules/Minutes/0499civilminutes.htm>

54. Id. at 28.

55. Id. at 29.
Computer-Based Discovery in Federal Civil Litigation

26

56. Administrative Office of the United States Courts, Preliminary Report of Actions

Taken by the Judicial Conference of the United States, in session, September 15,

1999 (22 September 2000) (on file with the author).

57. Remarks of Judge Paul Neimeyer on the Judicial Conference discussion, Draft

Minutes of the Civil Rules Advisory Committee, 14-15 October 2000, Edward H.

Cooper, Reporter (on file with the author).

58. 1996 WL 22976 (S.D. N.Y.). Cf., In re Brand Name Prescription Drug Antitrust

Litigation, 1995 WL 3360526 (N.D. Ill. 1995), in which the cost to the producing

party of searching 30 million e-mail messages for relevant information, estimated at

$50,000 to $70,000, was held not to be “undue” and would not be shifted to the

requesting party.

59. 194 F.R.D. 639 (S. D. Ind. 2000).

60. Fed. R. Civ. P. 53(b) states in part, “A reference to a master shall be the exception

and not the rule... a reference shall be made only when the issues are complicated...

a reference shall be made only upon a showing that some exceptional condition

requires it.”

61. 167 F.R.D. 90 (D. Colo. 1996).

62. 194 F.R.D. 639 (S. D. Ind. 2000).