Article by Kerry A. Brennan, Charles R. Ragan, Amy C. Gross
New Decision Suggests Modification of Cost-Shifting Analysis
As companies and individuals increasingly do business electronically, litigants are confronting new and different issues relating to the disclosure and production of electronic data. Because of the ease with which electronic records are created and stored, the sheer volume of potentially relevant material has increased exponentially. For example, it is projected that in 2003, over 1.5 billion e-mail messages a day will be sent in the United States, nearly as many pieces of mail processed by the U.S. Postal Service in a year.
Discovery is further complicated when the electronic data is not readily accessible or exists on media that must be restored at considerable expense before it can be reviewed. Although federal court rules usually provide that a responding party bears the expense of complying with a discovery request, the factors guiding whether a court
