NCJ Number
80294
Journal
Georgetown Law Journal Volume: 69 Issue: 6 Dated: (August 1981) Pages: 1465-1494
Date Published
1981
Length
30 pages
Annotation
This paper on the ready applicability of the Federal Rules of Civil Procedure to computer-aided discovery discusses the preservation of computerized information prior to trial, compelling a litigant to use the computer, information that a computer legally should provide, and equitably allocating costs of discovery.
Abstract
An overview of computer technology in litigation emphasizes that discovering parties usually seek discovery of data bases rather than software and initially should determine whether the requested information is stored in a business record or litigation system. A sampling of computer discovery issues are examined in a manner that roughly tracks the course of litigation, beginning with the problem of data preservation prior to discovery. Preservation and duplication orders are suggested to eliminate data destruction. Because litigants may refuse to use a computer to obtain information as a delaying tactic, rules of civil procedure are analyzed which suggest that the court has the power to compel a party to employ a computer to facilitate discovery. Requests for discovery of computerized information are generally no different than requests for data that are not computerized, but courts may be reluctant to permit discovery of the large amounts of material often contained in data bases. Application of the work-product privilege embodied in civil procedure rules is discussed for both business record and litigation systems. Courts should apply discovery rules liberally to permit discovery of data bases in business record systems but should limit discovery of software since this information is rarely relevant to a lawsuit. Discovery requests involving litigation systems implicate issues of privilege rather than relevance. Substantial need and undue hardship requirements are examined, as are policy concerns that some commentators feel should be considered in evaluating requests to discover a litigation system. Several courts have concluded that the discovering parties may specify the form in which they wish to receive the requested material. The costs of computer discovery usually are not excessive, especially when compared with the benefits that accompany computer use. The courts have the power to protect parties from undue financial hardship and should equalize the relative cost burdens on the litigants. Judges who are not familiar with computers could conduct evidentiary hearings with expert witnesses before allocating costs. The article contains 170 footnotes.