I. Introduction

Computers, e-mail, e-commerce, and the Internet dominate and are changing the landscape of the business marketplace. These once unimaginable innovations have undoubtedly simplified business--in most cases, anyway. From a legal standpoint, the injection of technology into the business world has actually complicated matters. One type of technology can be especially burdensome-- electronic mail or e-mail. With e-mail often replacing a formal letter or voicemail, the type and volume of business communications have increased dramatically. This proliferation is proving to be a source of liability for some companies due to improper use of e-mail by employees. More importantly, the accumulation of massive amounts of e-mail can unnecessarily increase the time and expense involved in litigation discovery. In addition, with individuals tending to communicate candidly in e-mail, overzealous attorneys go to great lengths to obtain e-mail, as this new medium may contain the "smoking gun" in litigation. With technology changing the face of business and presenting new challenges in litigation, attorneys and their clients are left with the daunting task of understanding how to prepare for and tackle "e- discovery."[1]

The purpose of this article is to familiarize corporate and defense attorneys with the issues presented by e-discovery and to provide suggestions as to how to tackle it in litigation. This article will first address the courts allowance of e-discovery, the extent to which electronic information and data are discoverable, and potential limitations to discovery. Second, the article will practically apply judicial trends by outlining how attorneys can assist their clients to be in the best possible position to deal with e-discovery and the issues of the technology age. In doing so, this article provides suggestions for e-mail and Internet usage policies to better control volume and content of electronic data, and offers steps a business can implement to make the organization and storage of electronic information more manageable and discovery-friendly. Third, the article outlines what constitutes a good faith reasonable search for purposes of responding to discovery requests. Finally, the article provides anecdotal examples of the hazards of electronic information in the litigation context.

II. Legal Implications: Courts are Embracing the Notion of E-Discovery

A. The Approval of Electronic Discovery Under the Rules of Civil Procedure and Judicial Decisions
Federal Rule of Civil Procedure 34, and its Minnesota counterpart,[2] provide for the discovery of documents and other information from opposing parties. Historically, "documents" has meant tangible paper documents. As society and the business world have changed with technology, the landscape for and the scope of discovery in litigation has transformed as well.

The Federal Rules of Civil Procedure and courts have also adjusted to the change. The text of Rule 34 provides for e-discovery by permitting the discovery of any "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably useful form."[3] The Advisory Committee Notes to Federal Rule of Civil Procedure 34 further provide that:

The inclusive description of "documents" is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a printout of computer data. The burden thus placed on respondent will vary from case to case, and the courts have ample power under Rule 26(c) to protect respondent against undue burden or expense, either by restricting discovery or requiring that the discovering party pay costs. Similarly, if the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs. [4]

The Manual for Complex Litigation also contemplates addressing the process for discovering electronic data in litigation discovery schedules.[5]  Specifically, the Manual for Complex Litigation advises that "[a]ny discovery plan must address relevant issues, such as the search for, location, retrieval, form of production and inspection, preservation, and use at trial of information stored in mainframe or personal computers or accessible 'online."'[6]
Courts have followed suit noting that "it is black letter law that computerized data is discoverable if relevant."[7]  Another court has noted that "[c]omputers have become so commonplace that most court battles now involve discovery of some type of computer-stored information."[8]  Citing its state equivalent to the federal discovery rules, a recent Massachusetts superior court decision noted:

[a] discovery request aimed at the production of records retained in some electronic form is no different, in principle, from a request for documents contained in an office file cabinet. While the reality of the situation may require a different approach and more sophisticated equipment than a photocopier, there is nothing about the technological aspects involved, which renders documents stored in an electronic media "undiscoverable."[9]  That being the current judicial sentiment,[10] counsel must understand the breadth of available discovery to prepare to litigate on this new battleground.

B. The Extent of Discovery Permitted
Like any other business record, electronic media[11] is discoverable in litigation and may be used as evidence in a courtroom.[12]  As with all other discovery, computer or electronic data is discoverable if the request satisfies the requirements of Rule 26.[13]  In other words, the information must be relevant to the subject matter of the lawsuit, not unnecessarily cumulative or duplicative; the burden or expense must not outweigh its benefit; and it must not be subject to a claim of privilege nor protected by the work product doctrine.[14]  Given that the "relevance" threshold is low[15] --"reasonably calculated to lead to the discovery of admissible evidence"[16] --attorneys focus on these standard objections[17] to curtail and limit e-discovery, as it is often more expensive and time consuming to produce than its paper counterpart.[18]  The most fertile ground for thwarting such discovery is the undue burden and expense objection.[19]  While courts have been quite generous in permitting broad discovery of electronic data, however, some courts have refused to allow production of electronic data based on speculation or suspicion alone.[20]

The difference between electronic data and paper documents is that electronic data is often thought to be deleted or destroyed when, in actuality, the electronic information still exists.[21] In addition, information about the electronic document (e.g., author of document, date and time document was created) may be imbedded in the document, which may be absent from the paper document.[22]

In order to understand the true extent of the burden of e-discovery to companies, it is necessary to examine the types of e-data that exists in most businesses today.

1. Types of Discoverable E-Data

Electronic information can be found in anything from earlier versions and drafts of agreements or contracts, to the discovery of "deleted" e-mail that was stored on back-up tapes, to user information that is only saved with electronic data. Computers generate, sort and store incredible amounts of information that can be attractive to litigation attorneys. Additionally, computers often store information long after paper records have been destroyed.[23]  Further, a wealth of information may only be retained and stored in electronic form and, therefore, would be inaccessible if electronic data were not discoverable.[24]  It is for these reasons that litigators often focus their attention on e-data.

Often e-discovery disputes revolve around the same types of electronic media: active data, network and personal computer hard drive data, computer back-up tapes, and deleted data. All of these various media are discussed below.

a. Active Data or Data Files

When most businesses are served with discovery requests for e-data, they most likely immediately think to search their officers' or directors' (or other "key" actors') personal computers for information responsive to the requests. The information that is readily available and accessible from these users' personal computers is called active data or data files.[25]  Almost any kind of data can be stored as active data on a network or on personal computer hard drives.[26]  This active data can exist in the form of e-mail messages, word processing documents, spreadsheets, databases, or calendars and can be inventoried simply by reviewing the individual's Windows Explorer or DOS file list.[27]  All of this data is subject to discovery.
"A request for raw information in computer banks is proper and the information is obtainable under the discovery rules."[28]  Perhaps more interesting (and troubling) is that some courts have ordered parties to permit opposing counsel to physically search through their computer systems to obtain active data. There are many places, however, where responsive e-data may be found. Other data that can contain voluminous amounts of electronic information for discovering parties include replicant data, and residual data.[29]  

b. Replicant Data

A fact that may be even more startling from an e-discovery standpoint is that documents that are never saved may still "exist" and be discoverable. Most computer users have probably noticed slight pauses in processing when working in a word processing document, spreadsheet, etc. These pauses are often automatic back-ups to applications in the event of a system failure. Each time this automatic back-up occurs, a "file clone" is created and stored.  [30] These file clones create a copy (and often multiple copies) of a document or file of which the computer user probably is not even aware exists.[31]  On most networks, these file clones are saved to a user's hard drive as opposed to the network server.[32]  As a result of these periodic back-ups the clones continue to reside on the user's hard drive--even after the document or file is deleted from the network server--often in multiple copies.[33]  In addition, data that is sent to a printer--while not saved--may be stored in a printer buffer that may also be recoverable.[34]  Therefore, while a user may believe he is "in the clear" because a document has been purged from the system, in reality, several copies may be residing on his hard drive.

One particularly fruitful source of replicant electronic discovery is "back- up tapes." Back-up data is "information copied to removable media in order to provide users with access to data in the event of a system failure."[35]  Backed-up copies of data may be available when systems are backed-up on either a formal or informal basis.[36]  Informal back-ups occur when individuals save certain documents (or even their entire hard drives) onto disk.[37]  Companies often will have a formal system back-up policy wherein the company's entire computer system is "backed-up" on a regular basis--daily, weekly, or monthly--and then warehoused for a certain period of time.[38]  By reviewing back-up tapes created at different times, litigators may be able to assemble an electronic tale otherwise beyond their reach.

Just about any kind of e-data can be captured on computer back-up tapes. Such e-data may include executable software applications, files containing a document or spreadsheet saved in a particular application, raw data that is entered into a document or spreadsheet, and unreadable, encrypted data. Information of interest to most discovering parties contained in back-up tapes are e-mail messages, previous drafts of word processing documents, the electronic information attached to some documents, and spreadsheets with hidden columns of data and hidden notes.[39]

In general, a wealth of information potentially can be found in electronic documents that would not otherwise be visible in a paper copy of those same documents. For instance, many documents' file properties can reveal the date the document was created, the author of the document, subsequent edit dates to the document, which users have access to revise the document, as well as the number of versions of the document.[40]  This information, if disclosed to the opposing party, can be fodder for litigation. However, despite the value of the information, because these back-up tapes potentially contain multiple copies of the same irrelevant documents, to the discovering parties' dismay, electronic data review can be an extreme waste of time and money.[41]

c. Residual Data

Contrary to popular belief, when a computer user hits the delete button on his or her computer, the document or e-mail message "deleted" does not vanish irretrievably into thin air.[42]  Hitting the delete button merely instructs the computer to write over the hard disk space that contains that particular document, e-mail message, etc.[43]  Depending on the size and use of the computer system, it may take weeks or even months to overwrite the space containing the "deleted" information.[44]  By the time the "deleted" file is actually overwritten, the "deleted" item may have been backed-up many times over for retrieval at any moment.[45]  Additionally, sometimes "deleted" files are only partially overwritten which enables competent computer forensic experts to recover the remaining parts of the document.[46]

d. E-Mail[47]

E-mail potentially can be a great source of evidence for the opposing party in litigation because people generally use e-mail as a way to communicate informally or candidly.[48]  E-mail is among the most popular mode of communication in the workplace. Currently, an estimated 108 million people are believed to be e-mail users, doubling the number of users in just four years,[49] and that number will only continue to increase throughout the twenty- first century.[50]  Usually e-mail composers fail to take much care and consideration when creating an e-mail message.[51]  What most e-mail users do not realize, is that e-mail messages are more likely to be permanent than paper letters.[52]  For instance, as discussed above, simply using the "delete" key on a keyboard does not permanently erase an e-mail message.[53]  Further, e-mail is very easy to duplicate and forward; therefore, e- mail can easily end up in the possession of an unintended recipient.[54]  Finally, if a business runs periodic back-ups of their network, e-mail messages are "backed-up" and stored on back-up tapes, making the messages everlasting (or at least as long lasting as the back-up tape).[55]

Another troubling factor regarding e-mail usage is that many businesses do not provide e-mail usage training or promote an e-mail usage policy.[56]  Therefore, not only can e-mail users use e-mail for non-business purposes without fear of punishment, presumably they can use e-mail for purposes that expose employers to substantial liability.[57]

While e-mail has most definitely had positive effects on the business environment, it also creates its share of headaches. One of the most notable downsides to e-mail has been its increase in the amount of information subject to discovery in litigation.[58]  This has never been more evident than in the recent Microsoft antitrust litigation.[59]  Even more in the public eye are the e-mail debacles that are currently plaguing the White House.[60]

2. Limitations of E-Discovery

Although courts are generally accepting the notion of the discovery of e-data,[61] they have, in some instances, imposed noteworthy limitations. These limitations are addressed below.

a. Overbroad and Unduly Burdensome Objection Successful

When faced with an e-discovery request, the best way to limit the scope of an electronic discovery search obligation is to assert that such a search is overly broad and unduly burdensome.[62]  Many courts have limited e- discovery requests based on the overbroad and unduly burdensome objections.[63]  "[C]ourts will generally not require a company to submit to intrusive, expensive or burdensome discovery of their electronic files where the burden is not justified by the relevance of the evidence likely to be discovered, the size of the case and the availability of less burdensome alternatives for obtaining the information."[64]

b. Cost as Basis for Objection

As a component of the burdensome objection, courts have also examined cost issues. Where the discovery is unduly burdensome or expensive and the parties' resources are disproportionate, the possibility exists for a court to order an allocation of costs.[65]  However, in most cases, the party required to produce the e-discovery is often the party required to pay for the production.[66]

Copy costs of electronic data, however, are generally borne by the requesting party--not the producing party.[67]  Likewise, if response to discovery requests requires extraordinary measures to comply, such costs are generally required to be paid by the requesting party.[68]

c. Attorney-Client Privilege and Work Product Objections Still Apply

While the discoverability of e-data can be a great breakthrough for the discovering party, it can be a nightmare to the producing party for the reasons discussed above. In addition to the disclosure of factual information, producing parties also need to be cognizant of potential privilege issues when producing their e-data. Like standard paper document discovery, documents stored on back-up tapes or computer hard drives may contain privileged attorney-client information and/or attorney work product.[69]  Courts have recognized the need to preserve the attorney-client privilege and work product doctrine objections in the production of e-discovery.[70]

Before producing back-up tapes in their entirety, data must be reviewed for these potential privilege issues.[71]  As in the non-electronic discovery context, this privilege can be inadvertently waived.[72]  One way to easily limit the review of a massive amount of documents is to search the data for specific identifiable terms that are relevant to the issues of the litigation.[73]  For instance, when searching for privileged documents, a search could be conducted containing all attorneys' names.[74]  Although such a search may be a more efficient manner in which to conduct a privilege review, a risk still exists that the search will not identify all privileged documents and an inadvertent production may occur.

III. Practical Applications: Getting Clients in the Best Position to Deal with

Legal Issues Surrounding E-Discovery and the Technology Age

Considering the new playing field lawyers and clients are facing and the line of court cases sympathetic to the requesting party's right to obtain relevant documents, counsel and their clients must efficiently and expeditiously address these issues.[75]  Efficiency will stem from: (1) taking prudent business steps to organize the company's electronic storage efforts; (2) implementing relevant document retention, employee Internet and e- mail usage policies;[76] and (3) taking immediate "preservation" steps at the outset of litigation.[77]  If these steps are taken, a company's chances of avoiding a litigation discovery nightmare increase dramatically.

A. Counseling Your Clients Prior to Litigation: Steps Companies Should Take Before (and Even to Avoid) Being Sued

1. Trouble Clients Want to Avoid

Today, e-mail and Internet access are available from the computer desktops of most corporate employees in America. Although these tools provide the benefits of efficient communication and ease of access to a wealth of information, they also provide fertile ground for abuse by employees--which can lead to corporate legal exposure in employment-related and other disputes and to the unchecked creation of a litigation "paper trail" management may not even know exists.[78]

a. Employment Litigation

Using e-mail and the Internet at work, employees may send harassing, pornographic or other inappropriate "jokes" or messages. As with other verbal comments or hard copy "jokes," these messages are no joking matter to many recipients. The result--lawsuits. Employees' improper use of e-mail and the Internet has resulted in the discovery of and use of electronic evidence in a large number of employment related disputes, including wrongful termination,[79] employment discrimination[80] and sexual harassment.[81]  From a risk management and human relations standpoint, these are obviously situations that an employer would like to be able to monitor and eliminate.

b. Examples of E-Discovery in Other Litigation

E-mail has been the cause of costly litigation and embarrassment in other situations as well. For example, in Siemens Solar Industries v. Atlantic Richfield Co.,[82] a highly publicized case, Siemens entered into a stock purchase agreement with ARCO.[83]  Siemens filed suit against ARCO alleging that ARCO had made false representations relating to the viability of ARCO's TFS technology system.[84]  Through discovery, Siemens uncovered the proverbial smoking gun--internal ARCO e-mail messages between ARCO and ARCO Solar representatives that revealed ARCO's opinion that TFS production was, indeed, not commercially viable.[85]

Perhaps the most highly publicized and ironic example of e-mail damaging a corporation is the Microsoft antitrust litigation.[86]  During the Microsoft litigation, Bill Gates, in a sworn deposition, flatly contradicted his e-mail statements, and an e-mail from James Barksdale, chief executive of Netscape, to America Online's chairman, Steve Case, in which he referred to Case as "Franklin D." and himself as "Joseph Stalin" in an allusion to the leaders of the United States and the Soviet Union in World War II.[87]  These examples of cavalier e-mail use should be reason for concern and the impetus for proactivity with respect to electronic document issues for all companies.

2. How to Help Your Client Protect Itself From Trouble

Obviously, not all "trouble" can be avoided. Certainly, management cannot completely control the use and content of electronic communication by its employees. However, there are *957 steps companies can take to minimize risk and control the universe of documents that may be discovered, and potentially used against the company in litigation.

a. E-Mail and Internet Policies

Companies whose employees use electronic communications media should develop policies and procedures to minimize non-productive e-mail and Internet use while, at the same time, protect the corporation's interests.[88]  E-mail and Internet use policies should be well thought out and tailored to address the concerns of the particular business. Although policies will vary with the type of business, companies should consider addressing the following issues, in clear and concise fashion, in their policies:

1.      the extent of usage allowed--specifically state the restrictions on the use of e-mail and the Internet;

2.      inform the employee that the employer's computer, technology and communications system, including e-mail and the Internet, are the sole property of the employer;

3.      inform the employee no e-mail message is considered private, except where it may benefit the company, and that employees should not expect that their messages will remain private;

4.      a statement that the company reserves the right to monitor[89] usage of e-mail and the Internet, in the ordinary course of business; and

5.      the prohibition against using e-mail or the internet to communicate harassing, offensive, defamatory or sensitive messages, including, but not limited to, messages inappropriate under the company's harassment and other policies.[90]

Companies may also want to consider having the policy include the following prohibitions:

1.      solicitation or proselytizing for charitable, religious, political or other non-business purposes;

2.      transmission of trade secrets, confidential or privileged communications;

3.      the unauthorized copying and distribution of copyrighted material; and

4.      uses, such as chain mail, that degrade system performance.[91]

In order to ensure compliance, employers must communicate or disseminate policies directly to the employees.[92]  The policies should also contain information concerning the consequences[93] of violating the policies.[94]  Employees should be required to sign an acknowledgment that they have read, understand and agree to abide by the policy and its terms.[95]  Periodic reminders of the policy and necessity of compliance are also encouraged.[96]

b. Electronic Data Retention Policies

Although the advent of technology has in some sense saved "physical space" with respect to document storage, as the use of technology increases, a company's computer storage space will be taxed as well. Like paper documents, there is certainly no need to retain every electronic document, e- mail, memorandum, or letter indefinitely. However, there are business reasons and legal requirements imposed by statutes and regulations that mandate maintenance of certain types of records.[97]  To effectively manage these competing concerns, companies should consider implementing a document retention program that encompasses all of its records, electronic and otherwise. Many companies already have document retention policies for their "paper" documents.[98]

A document retention policy "involves the systematic review, retention, and destruction of documents received or created in the course of business."[99]  One author suggests that the decision to implement such a program must take into account the "balancing of potentially competing interests," including "(1) legal obligations, (2) efficiency considerations, and (3) pre- litigation concerns."[100]  There is no template policy, as each company's policy must be tailored to its specific needs.[101]  A document retention policy should be grounded in legitimate business objectives and not a basis for destroying documents which may be potentially relevant to later litigation.[102]

As part of its document retention program, a company should specifically address concerns with respect to electronic documents, particularly e-mail. As part of their routine practice, companies should consider using computer programs that electronically remove deleted messages so that they can no longer be retrieved. Companies should also index e-mail archives in order to allow for efficient searching when required.[103]  Companies may also consider adopting policies intending to delineate official company e-mail, which should be treated as a paper document and subject to regular document retention policies, and personal unofficial e-mail, which should be routinely deleted. Some companies have assigned employees two separate e-mail accounts, one for official business and another for personal and/or administrative communications. [104]

At a minimum, corporations should consider including the following in their corporate e-mail retention policies:

1.      A statement specifying the routine deletion of e-mail after a specified time.

2.      A statement requiring employees to discard their e-mail regularly and a limit on the space allotted to each employee for their e-mail. The company can use computer programs that automatically purge inactive e-mail.

3.      A statement that the automatic deletion of electronic records will be suspended and steps taken to preserve these records once litigation or a formal investigation is commenced.[105]

Following the above-delineated steps should put a company in a better position to respond to discovery requests and defend itself in litigation.[106]  A company will also find itself better organized from a business perspective.

B. Steps To Take When Your Client Has Been Sued
Although courts have not been uniform in their approaches as to the duty to preserve documents and information, many courts have held that the parties have an obligation to preserve documents and information (electronic and non- electronic) that is reasonably foreseeable to be relevant to potential or ongoing litigation.[107]  Failure to do so may result in liability for spoliation of evidence,[108] exclusion of evidence,[109] or in a default judgment as a discovery sanction.[110]

Once a lawsuit is filed (or the company has reason to believe it is likely to be filed), the company should take steps to ensure the preservation of the universe of relevant documents and information.[111]  Once an attorney is retained to represent the company in the lawsuit, the attorney should work closely with the general counsel or other designated management personnel to establish a document preservation protocol. This protocol should include: an identification of the potentially relevant corporate "key" actors and the potentially relevant universe of documents with respect to each "key" actor. Depending on the size of the company and the nature of the dispute, the attorneys may need to coordinate with the company's internal information services or technology department to develop an understanding of the company's technology, document retention policy and practices, the company's policy with respect to back-up tapes, and whether any relevant tapes exist and to establish a protocol for addressing these issues with respect to discovery. All of these steps should be documented. Taking these steps at the outset of litigation will simplify the actual discovery and document production process. Furthermore, it serves as evidence of a company's good faith and reasonable response to discovery.[112]

C. How to Conduct A Reasonable Good Faith Discovery Search
The process one must go through to respond to an electronic discovery request is not all that different from responding to a standard document request.[113]  The party must identify: the "key" internal personnel who may have relevant information, the types of documents and information that may be relevant, and the potentially relevant time period.[114]  From there, in addition to the hard copy document search, the following steps should be taken to search for potentially relevant documents:

(1)  Search each "key" person's:
(a) office computer hard drive;
(b) laptop computer;
(c) home computer (if used for business purposes);
(d) handheld computer devices (e.g., Palm Pilots);
(e) network files;
(f) a-e for each key person's assistant or staff;

(2)  Produce any individually "backed-up" data, such as floppy disks.[115]
If the nature of the lawsuit is such that relevant documents are known to have been purged from the above-listed sources under the company's document retention policy, it may be necessary to search system back-up tapes (if any exist) for relevant documents.[116]  The company and its counsel should document the steps taken above as well.

If each of these steps is followed, the company should be on solid ground that it has fulfilled its discovery obligations.[117]

D. Situations To Avoid: The Litigation Nightmare
The unwary company that does not utilize a proactive approach to document and data management, as outlined above, may find itself in an expensive litigation nightmare. These nightmares can range from hefty sanctions and/or the entry of default to being ordered to engage in an expensive electronic information restoration process.[118]

A company's failure to produce e-discovery has proven to be costly and has resulted in the ordering of sanctions and default judgment. One example of this notion is a recent case, Proctor & Gamble Co. v. Haugen,[119] where Proctor & Gamble was sanctioned $10,000 for failing to retain and produce e- mail of five key employees.[120]

Another example is Crown Life Insurance Co. v. Craig,[121] where the Seventh Circuit upheld the district court's default judgment sanction against the defendant for failure to produce relevant electronic documents and information in response to the plaintiff's general document requests.[122]

One final telling example of an expensive restoration process is in Linnen v. A.H. Robins Co., Inc.,[123] a case that presents a situation defense lawyers and their clients will surely want to avoid. The Linnen case was a state court wrongful death action dealing with the infamous weight-loss drug fen/phen.[124]  The central issue in the case was the defendant's knowledge of the risks of the product.[125]  Plaintiffs sought discovery of any electronic mail messages retained by Wyeth-Ayerst Laboratories (Wyeth) that were responsive to the plaintiffs' discovery requests.[126]  Not surprisingly, Wyeth opposed such discovery, claiming it had already produced a large number of documents, including e-mail messages.[127]  Further, Wyeth objected on the grounds that it would be unduly burdensome and costly for it to restore the back-up tapes containing the e-mail and other documents.[128]  Moreover, if ordered to produce such information, Wyeth requested that the plaintiffs be compelled to absorb the cost.[129]

The plaintiffs in Linnen became interested in the discovery of e-mail when they learned through discovery that many Wyeth employees had used e-mail to communicate regarding the issues that were the subject of the lawsuit.[130] The plaintiffs then specifically requested e-mail sent or received by fifteen individuals on several topics for a certain time period.[131]  Wyeth responded that it had "'no mass storage devices' or other back-up tapes containing electronic mail messages" for that period.[132]  However, Wyeth was able to produce e-mail messages saved on personal computers.[133]  Several months later, Wyeth became aware that it had back-up tapes in storage that could contain responsive information.[134]  As it turned out, Wyeth located over one thousand back-up tapes from a variety of software systems.[135]  Five categories of tapes existed, including over one thousand tapes from the relevant time period.[136]  The cost to restore one category of the tapes ranged between $300,000 to $350,000 and $850,000 to $1.4 million for another[137] -- an obvious ground for the undue burden objection.

Rather than order a wholesale restoration, the Court held that it would await the outcome of the protocol endorsed in the Federal Court Multi-District Litigation (MDL),[138] wherein Wyeth, also a defendant in the MDL, agreed in that case to restore a sampling of tapes from each of the categories which were identified as possibly containing relevant information.[139]  Under the MDL protocol, Wyeth would bear the initial costs but had the right to seek reimbursement of up to $25,000 from the plaintiffs.[140]  Only upon a showing of good cause would further production be required.[141]  Pending the findings in MDL, the Court in Linnen left open the issue for re- evaluation.[142]

Of particular interest to future corporate defendants was the Massachusetts court's comment in Linnen:

[T]his is one of the risks taken on by companies that have made the decision to avail themselves of the computer technology now available to the business world. To permit a corporation such as Wyeth to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results. [143]

These are just a few examples of litigation nightmares. Undoubtedly, more will follow as companies begin to realize the perils of technology in the litigation context.

IV. Conclusion

Technology has changed the face of the business world. As discussed above, although this technology is beneficial in many respects, it is also a source of potential liability for companies. Courts repeatedly allow discovery of electronic data. Although access to such information is not without limitations, the practical reality is that electronic discovery will inevitably play a part in all types of litigation now and into the future.

The laundry list of e-discovery horror stories continues to grow. With that in mind, companies must adapt to this changing landscape to put themselves in the best position possible to tackle such difficult and cutting- edge legal issues presented by this new medium and to enable them to not be the next example of an electronic discovery nightmare. While all "trouble" certainly cannot be avoided, attorneys can work with their clients to assist them in protecting themselves.

 

Useful pre-litigation tools that all companies can use to protect themselves include the implementation of e-mail, Internet and electronic data retention policies. Once litigation commences, companies can protect themselves by implementing steps to preserve the universe of relevant data and to enable them to conduct an efficient, good faith reasonable search that both comports with their discovery obligations in response to discovery requests aimed at electronic evidence and does not necessitate excessive and unnecessary expense to the company.

Although it is well-established that electronic data is discoverable, the law continues to be developed with respect to e-discovery. As technology continues to evolve, businesses will undoubtedly be faced with many new and difficult issues. For now, attorneys can assist their clients by counseling them with respect to the potential pitfalls and by assisting them in implementing preventative systems to protect themselves against such issues.

Footnotes