In 2006, the Federal Rules of Civil Procedure - the court process for civil lawsuits - were changed because more than 95 percent of all information is now electronic. Many other states have followed suit, and litigation in the U.S. is now dominated by electronically stored information (ESI). ESI has spawned a new consulting marketplace of consultants, IT professionals and expert witnesses who specialize in the identification and control of ESI. As a result, IT professionals need to understand the Law of Evidence and Rules of Civil Procedure as much as they do the server technology and storage area networks.

Lawyers, on the other hand, have yet to master IT, not just IT lingo, but how IT professionals manage their business. So there is confluence of IT and law that has subsumed litigation in the U.S. Outside the U.S. courts and arbitration systems, we do not subscribe to the open-end litigation which happens in the United States.

In the U.S., litigation is ruled by state or federal courts systems, or by private arbitrations governed by the rules of the American Arbitration Association, or some other organization like Judicial Arbitration and Mediation Services (JAMS), a private alternative dispute resolution (ADR) provider.

This article gives some basic information about e-discovery to help IT professionals understand the law in a straight-forward manner.

What Is Discovery?

Generally after a lawsuit (or arbitration) is filed until just before the trial (or hearing, in an arbitration) is a period of time referred to as discovery. Simply put, this is a time when each party of the suit has a chance to ask questions of the other parties. Each side in a suit is entitled to inquire about the claims and defenses so that when the trial occurs, there are no surprises. In fact, if a party withholds information, it may be penalized by losing the trial or a mistrial may be called by the judge or arbitration panel. The evidence collected in discovery is used at the trial or arbitration hearing to prove or disprove specific claims.

There are four primary categories of discovery:

1. written questions referred to as interrogatories;

2. requests for the production of documents and things;

3. requests for admissions; and

4. oral testimony called depositions.

For the most part, there are limits on each category, but since ESI is fundamental to every lawsuit today, it is best to have a basic understanding of each type. Interrogatories, document requests, and requests for admissions usually include definitions, and in today's world, mostly detail IT and/or Internet issues related to the dispute.

The types of discovery requests included in interrogatories regarding ESI can include questions such as: "Describe the procedures for daily backup of the e-mail system;" "When did you start using Google Analytics to measure traffic on your Web site;" or "List all employees who had passwords to the Oracle Financial database between Jan. 20, 2003 and May 9, 2005." Under most procedures the responding party has 30 days to send its answers and objections to the questions posed, all of which can be challenged for completeness or accuracy.

Document requests may include a request for all e-mails from certain individuals during a defined time period, all reports from a certain financial system, or copies of correspondence between specific individuals or departments. Under most rules, the guideline for producing answers to requests state that these documents be produced in their native electronic format rather than in paper, tif or pdf. Parties are not required to create items that don't exist, but ESI is different than paper, tif or pdf, so the ability for IT to respond to these document requests requires an understanding of the issues in the

Peter S. Vogel  |  Contributing Writer
Peter S. Vogel (pvogel@gardere.com, 214/999-4422) is a trial partner at Gardere Wynne Sewell, where he is chair of the Electronic Discovery Team and co-chair of the Technology Industry Team. He was a systems programmer on mainframes, received a master's in computer science, and taught graduate courses in information systems and operations research. For 30 years, his law practice has represented buyers and sellers of computer technology and Internet services. He's taught courses on e-commerce law