The December 2011 release of Computer Law by David Bender contains a completely rewritten 200-page chapter on discovery, which constitutes a monograph on the mechanics of discovery in the electronic era. This Chapter discusses the entire range of discovery from the perspective of electronic document creation and maintenance. It begins with the basic methodology of electronic discovery, and discusses, in the electronic context, the various discovery devices permitted under the Federal Rules of Civil Procedure, i.e., stipulations, depositions, interrogatories, document production, and admissions. It reviews current law regarding situations where time and expense constraints, coupled with a massive discovery obligation, inevitably result in the inadvertent production of documents subject to attorney-client privilege or the work product doctrine.
The Chapter also discusses critical matters such as the importance of advance defensive preparation for discovery, identifying the point in time at which an obligation to preserve documents arises (earlier than some might expect), and the obligations of counsel once that point has been reached (more extensive and even more intrusive than many previously believed). The Chapter also treats the determinations that courts have made as to when data is "not reasonably accessible," a condition that may relieve a party of its obligation to produce. Further, it examines the form in which production must be made, and the required treatment of metadata (data included in an electronic file that is not evident in hard copy form). Additional topics treated in the electronic context are use of this evidence at trial, spoliation of evidence, sanctions for discovery abuses, allocation of expenses incurred in production, and the use of protective orders to accommodate various considerations. The Chapter also describes preparation and trial procedure, the use of trial preparation materials, shifting the expense of computer-assisted research, and electronic service of process.
Please click here to listen to a podcast in which Mr. Bender discusses why privacy is so important, practical tips for dealing with a data security breach, federal statutes and state laws that come into play and emerging issues in data privacy.