• Introductory Presentation

  • Abstract

    The following report reviews pleading and discovery issues in civil litigation.  Emphasis is given to the examination of rules pertaining to ESI in civil litigation.  Particular attention is paid to the Federal Rules of Civil Procedure (FRCP) as many states follow, if not copy, these rules in their own rules of civil procedure.  Since the rapid proliferation of ESI impacts costs and methods used in civil litigation discovery, special attention is given to reform studies such as The Electronic Discovery Reference Method (EDRM) and the Pilot Project Rules published by the Institute for the Advancement of the American Legal System (IAALS).

  • The New Discovery
  • THE NEW DISCOVERY.pdf

  • According to an IBM White Paper, "Every day, roughly 2.5 quintillion bytes of new data is created."

    This report can be accessed at: http://www-01.ibm.com/software/info/rte/bdig/dlg-1-post.html

  • The New Discovery

  • Conclusion

    E-Discovery is fast becoming one of the most fascinating and troublesome areas of litigation.  Technology and media will only expand moving forward.  Large organizations will continue to generate more and more information in electronic form creating increasing costs to comply with discovery obligations in the event of a suit.  These expensive burdens can be triggered by an adversary needing to meet the low evidentiary threshold notice pleading requires.  (Fliegel & Entwisle, 2009)

    The old discovery was simple in comparison to the New Discovery.  Time was when documents were on paper in files, easily (usually) accessible and easily discoverable.  Documents today mean something else entirely.  A document may not be on paper and may never have been on paper.  A “document” may be a web page, an email, or a complex spreadsheet using XBRL.  Discovering a spreadsheet in today’s environment requires having it in electronic format so the formulas can be examined.  Paper spreadsheets would not expose the underlying information known as metadata.

    This paper only scratches the surface of the ESI and e-Discovery frontier.  Every area is advancing and changing constantly.  Private businesses like EDRM and organizations like IAALS are making tremendous impacts on the way the legal community and business approach information.  The legal system as a whole seems to move more slowly, though.  But hard and fast rules don’t seem to be the best method for handling the questions facing the legal community about discovery issues.

    We have touched on some rulings by judges faced with discovery decisions of which their predecessors never dreamed.  Like Judge Peck in S.D. New York, they have advanced the cause by making what a few years ago would have been too radical to be upheld by higher courts.  Today they are becoming precedent.  These judges and probably not a think tank, legislative committee or study group are the real avant-garde of the New Discovery.

This portfolio last updated: 15-May-2019 2:49 PM