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Trustworthy Information Systems Handbook: Appendix E, II.

Discovery of Electronic Records

Today it is well established that computerized data and electronic records (as well as documentation of the computer system itself) are discoverable if relevant during discovery (the information-gathering process of a lawsuit). See FRCP 34(a); Adams v. Dan River Mills Inc., 54 FRD 220 (WD VA 1972). Courts have stated that information which is stored, used, or transmitted in new forms should be available through discovery with the same openness as traditional forms. It would be dangerous if new techniques for using information became a hindrance to discovery in litigation. Specifically, a defendant's deleted files on its computer hard drive may be discoverable if they are still recoverable. See Gates Rubber Co. v. Bando Chemical Indus. Ltd., 167 FRD 90 (D CO 1996); Strausser v. Yalamachi, 699 So2d 1142 (FA App 1996) Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 USLEXIS 6355 (SDNY 1995); Seattle Audobon Society v. Lyons, 871 F. Supp. 1291 (WD WA 1994); Easley, McCaleb & Associates, Inc. v. Perry, No. E-2663 (Ga. Super. Cit. July 13, 1994); PHE, Inc. v. Department of Justice, No. 96-2840(PLF) (DDC 1991); Pearl Brewing Co. v. Joseph Schlitz Brewing Co., 415 F. Supp 1122 (SD Tex 1976); Greyhound Computer Corp., Inc. v. IBM, (3 Computer L Serv Rep 138 D. MN 1971). When computerized data is produced, it must be in a form reasonably useable by the other party. If a party suspects that the other party is not producing all relevant information or has destroyed records, the party may request access to the other party's computer system, or visit the other party's site.

The proliferation of e-mail has changed discovery greatly. The Federal Rules of Civil Procedure do not explicitly allow for discovery of e-mail, but state more generally that electronically stored data is discoverable. Many courts have upheld e-mail discovery requests, making e-mail messages a fodder for legal action. Most e-mail systems can create a complex record of communication, capturing the exact text that users send and receive, as well as storing information regarding their transmission and receipt. Destroying e-mail is difficult; even if a user deletes a message from his or her machine, most e-mail systems store messages on a centralized backup file for an indefinite period of time. It is relatively easy to retrieve deleted e-mails from most computer databases and these deleted e-mails are generally discoverable. See In re Brand Name Prescription Drug Antitrust Litigation (94-C-87, MDL 997 (ND IL 1995)).

Note, however, that the attorney-client privilege can extend to computer files. If legal counsel's advice or opinion was conveyed through electronic mail, then that message is privileged, except to the extent it contains information meant to be distributed to persons other than the corporate client. See IBM v. Comdisco, Inc. (91-C-67-1992 Del Super LEXIS 67 March 11, 1992). As a result, e-mail communications received from legal counsel should not be forwarded to any party within the organization, unless such party has a need to know such information. In addition, security measures should be in place to ensure that other employees at an organization do not have access to each other's e-mail, including any e-mail communication from the organization's legal counsel.

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Appendix E

TIS Handbook last updated July 2002, Version 4.