Artful Dodger: Responding Parties' Ability to Avoid Electronic Discovery Costs under 26(b)(2)(B) and 26 (b)(2)(C) and the Preservation Obligation, The
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Authors
Schiermeyer, Kara A.
Issue Date
2009
Volume
42
Issue
Type
Journal Article
Language
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Abstract
INTRODUCTION|Nearly ninety-nine percent of information created today is produced in an electronic format. For a point of reference, the United States Postal Service anticipated delivery of 212 billion pieces of mail in 2006, while computer users were expected to send roughly sixty-two billion e-mail messages every day in 2006. As electronic documents continue to replace traditional paper documents, it is plausible that companies will only maintain electronic records of their decisions and results. This increase in the volume of electronic information is causing problems for the federal discovery rules and litigation practices. |The Federal Rules of Civil Procedure ("Federal Rules") specifically limit the production of electronically stored information. Under Federal Rule 26, electronically stored information that the court does not find reasonably accessible because of undue burden or cost must meet a good cause standard in order for it to be produced. The federal discovery rules presume that the party responding to a discovery request (the "responding party") will bear the costs of discovery requests, but this presumption weakens when the party requesting the discovery (the "requesting party") seeks electronic data only available from expensive-to-restore back-up systems. When such information is found too costly to produce, the cost of the requested discovery can be shifted from the responding party to the requesting party. Therefore, the current Federal Rules' structure, and the case law providing for cost...
Description
Citation
42 Creighton L. Rev. 227 (2008-2009)
Publisher
Creighton University School of Law