ELECTRONIC DISCOVERY LAW:  e-discovery
DISCOVERY OF
ELECTRONIC DATA
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LEGAL AUTHORITY FOR
ELECTRONIC DISCOVERY

CALIFORNIA
FEDERAL RULES
CASE LAW: ELECTRONIC DATA DISCOVERABLE AS OTHER DOCUMENTS
See also Department of Justice Outline at http://www.cybercrime.gov/s&smanual2002.htm

CALIFORNIA PRODUCTION & INSPECTION

CALIFORNIA CODE OF CIVIL PROCEDURE §2031

Production of documents, etc. pursuant to written request to party and written response
See Document Production Case Outline for procedure and case outlines
See Discovery Act & Outline for text

Subject matter of CCP §2031 Request for Production

.010(a) "...inspecting...tangible things...or other property"
.010(c) "produce and permit...to inspect...any tangible things"
.010(d) "to enter on ...property to inspect...or sample..any designated object ...on it

CCP §2016.020(c) definition: "document" and "writing" refers to Evid.Code §250 - see below

Procedures for conducting electronic discovery [enacted 2001, see description and text ]

CCP §2017 Court orders modifying the CCP  for using technology to conduct discovery
CCP §2025.310 depositions by telephone or other remote electronic means

Form of production of electronic data

CCP §2031.280(b) "If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations...into reasonably usable form."

CALIFORNIA EVIDENCE CODE definition sections supporting discovery of electronic data

Evid.Code §250 "other means of recording upon any tangible thing any form of communication...including symbols"
Evid.Code §255 "Original" re "data ...stored in a computer or similar device" is "any printout or other output readable by sight"

See also CIVIL DISCOVERY PRACTICE (3d Ed.1998 CEB),§8.23, p.710 et. seq.

See also
CCP §1985.3(a)(1) defining "personal records" to include "electronic data pertaining to a consumer"
CCP §1985.6(a)(1) defining "employment records" to include "electronic data pertainin to the employment of any empoloyee"

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FEDERAL RULES

For text of rules see Cornell Law
Proposed Federal Rules re Discovery

FRCP Rule 34

"including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form"

FRCP Rule 26 early disclosure rule: at or within 10 days after the meeting of the parties under subdivision (f)

"a party shall, without awaiting a discovery request, provide to other parties:
(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

Amendment December 2000; former provision
(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings

(C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered"

Note alternatives in (B): produce OR identify

Manual for Complex Litigation

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ELECTRONIC DATA DISCOVERABLE AS OTHER DOCUMENTS

Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [request for documents includes electronic documents such as email and was basis for production, copying and examining opponent's hard drive for relevant email; only limitation is burden and court sets forth factors to consider on burden issue]

Linnen v.A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 ["A discovery request aimed at the production of records retained in some electronic form is no different, in principle, from a request for documents contained in an office file cabinet. While the reality of the situation may require a different approach and more sophisticated equipment than a photocopier, there is nothing about the technological aspects involved which renders documents stored in an electronic media "undiscoverable."]

Anti-Monopoly Inc. v. Hasbro Inc (S.D.N.Y. 1995) 1995 U.S. Dist. LEXIS 16355 [electronic documents discoverable even if hard copy provided; Producing party "can be required to design a computer program to extract the data from its computerized business records; consider cost/benefits, need, shifting of expenses]

Adams v. Dan River Mills, Inc., 54 F.R.D. 220, 222 (W.D. Va. 1972) [FR 34 and 1970 Advisory Committee comments to amendments make discoverability clear; computer tapes proper subject of discovery]

Emerick v. Fenick Industries (5th Cir. 1976), 539 F.2d 1379 [default entered when defendant failed to produce books and records claiming unable to do so since data was on computers]

Santiago v. Miles 121 F.R.D. 636 (W.D.N.Y. 1988), [Federal work product issue re computer generated production of data after counsel participated in the development of the software that produced the printout. The court noted "A request for raw information in computer banks is proper and the information is obtainable under the discovery rules." ]

Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [discoverable computer records include deleted documents that can be recovered]

Daewoo Electronics Company, Ltd. v. United States, 650 F. Supp. 1003, 1006 (C.I.T. 1986);

National Union Electric Corporation v. Matsushita Electric Industrial Co., Ltd., 494 F. Supp. 1257, 1260-62 (E.D. Pa. 1980)."]

Gates Rubber Co. v. Bando Chemical Indus., Ltd 167 F.R.D. 90, 112 (D.Colo. 1996) [site inspection order prohibiting destruction & permitting expedited discovery on computerized files. Expert criticized for not making a image copies of drive; party has "a duty to utilize the method which would yield the most complete and accurate results."]

Kleiner v. Burns (2000 D.Kan), 2000 WL 1909470 [Former FR 26 production. Defendant produced correspondence between it and plaintiff. Plaintiff sought emails, voice mails, web sites, web pages. Court said try harder,sanctions, and cited adviory comment 1993 notes re inclusions in date of voice mesages, deleted data, backup and archival data, history files, etc.]

Crown Life Ins. v. Craig Ltd, 995 F.2d 1376 (7th Cir.1993) [sanctions precluding evidence for failure to comply with discovery order; "documents" include computer data and are not limited to writtten hard copy]

Bills v. Kennecott, 108 F.R.D. 459, 462 (D. Utah 1985) [ "Computers have become so commonplace that most court battles now involve discovery of some type of computer-stored information.]

Brand Name Prescription Drug Antitrust Litigation (ND Ill. 1995) [email discoverable at producing party's expense, $50-70,000, but discovering party to pay copy costs]

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