Happy Almost Thanksgiving! 4 Experts Share Changes in E-Discovery They’re Thankful For

A lot has changed in e-discovery over the years, and while change can be difficult at times, there’s a lot we have to be thankful for with these changes.

If you really want to look at how far we’ve come in e-discovery, take a step back to the 1980’s when electronic evidence was still in its infancy.

Electronic Communications as Evidence

Before 1986 (and the ECPA), Electronic Communications simply meant recorded phone conversations and electronic banking transfers. Oh, and pagers. Written documents were sent by snail mail (it was just mail then), fax (in the movie Back to the Future II, faxes were thought to be so cutting edge, they would be the main form of communication now), or by bike messenger (like Kevin Bacon in Quicksilver!).

Research

Libraries--big buildings that required you to get out of your chair, get dressed, and travel across town (sometimes further) in order to find information. And you had to go during normal business hours. Lexus/Nexus was getting started in those days, but back then, you still had to go to the library to use the computer terminal.

Documents and Discovery

30 years ago, when a legal hold was initiated, the legal team basically went through all of a company's file cabinets, made copies of anything that looked responsive, and put it in a file folder. For word processing files and other documents stored on a computer, a person looked through each file manually, saved anything that looked responsive on a floppy disk, printed it out, and put it in a file folder. Then it was all numbered using a Bates Numbering Machine and indexed long-hand on a yellow legal pad. (FYI: 160 filing cabinets = 10GB thumb drive that you can now pick up standing in line at the grocery).

Here are a few more recent changes that e-discovery professionals are thankful for!

I am thankful for…FRE 502(d)

I am thankful that Rule 502(d) of the Federal Rules of Evidence exists, but unhappy that lawyers seem unaware of it. I am thankful that TAR allows parties to more easily and cheaply review the massive amounts of electronically stored information (ESI) that businesses generate, but again wish it were more widely used. Finally, I am happy that Rule 1 requires parties to cooperate, something that the Sedona Conference espoused in its 2008 Cooperation Proclamation.

--Hon. Andrew Peck, US Magistrate Judge, Southern District of New York