Electronic Discovery

Discovery is the court-related process during litigation through which the parties exchange information relevant to the dispute, including "documents" and "things." In 1970, the rule was amended to add "data compilations." As digital methods of communication and data storage became increasingly common, the discovery rules changed again. They now include a separate category called "electronically stored information" (ESI).

In some ways, discovery of ESI is the same as any other discovery. The rules about relevance and proportionality apply, as do the rules about privilege. Nevertheless, there are some qualities of electronically stored information that present unique issues. It is these special characteristics and associated rules that are the focus of this lesson.

This lesson has more text than most CALI lessons, because many Civil Procedure textbooks contain only very brief discussions of e-discovery. If you have already studied the topic in depth, you may be able to read the text quickly as a brief refresher. If not, all of the information you need to answer the questions is contained within the lesson.

Learning Outcomes

On completion of the lesson, the student will be able to:

1. Explain the concept of electronically stored information.
2. Understand what triggers the duty to preserve ESI that will be relevant to litigation and the general mechanics of a "litigation hold."
3. List the types of ESI issues that must be discussed in early discovery planning.
4. Describe the process through which requests for ESI are made and responded to.
5. Identify and apply the sanctions that are available for "spoliation" -- the wrongful deletion of ESI.