The 21st century is known by many as the “Technological Revolution,” with gadgets, gizmos and computers getting smaller, faster and better as each day passes. Recently, the New Jersey Supreme Court formally took into account the technology age when it adopted amendments to the court rules to deal with the special issues “E-discovery” presents. The rule changes, which took effect on September 1, 2006, regulate discovery in the age of e-mail, voice mail, computer files and other information being stored electronically. The changes appear in civil rules covering case management conferences (4:5B-2), scope of discovery (4:10-2), production of documents (4:18-1) and others.
The E-discovery rule amendments seek to deal with “ESI,” or electronically stored information. According to a New Jersey Supreme Court Civil Practice Committee report, ESI is defined as “any material that is stored in an electronic format, including, but not limited to, word processing documents, video and audio files, spreadsheets, presentations, e-mail, web pages, voicemail, and text messages.” As such, ESI may be stored on a computer, a computer network, a backup tape or disk, a hard drive, flash drive, or other electronic media storage devices.
A study by the University of California highlights the importance of obtaining electronic discovery because more than 90 percent of information produced by businesses is stored in digital format, rather than in paper documents. Given that today more people and businesses store more data electronically, the rule amendments were prompted by the need to prevent discovery searches from becoming nebulous, highpriced fishing expeditions.
The protections the amended rules seek to implement occur early on in the litigation process. The party responding to an information request should be allowed to withhold ESI if it is not reasonably accessible “because of undue burden or cost.” At the same time, however, the rule amendment also says, “If that showing is made, the court may nevertheless order discovery from such sources if the requesting party shows good cause.” Furthermore, “If a request does not specify the form or forms for producing electronically stored information, a responding party shall produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.” The amended rules put the onus on individuals and/or businesses to get a handle on their data retention systems so that they may better inform their counsel what’s in their system. In short, better cataloging can save the cost of restoring documents from dozens of tapes if an enterprise is able to identify the one tape that contains the requested documents. Thankfully, new technology has made tape restoration less expensive.