Federal Courts Law Review

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FEDERAL COURTS LAW REVIEW - 2005 Fed. Cts. L. Rev. 1


By David K. Isom


[a.1] More than 99% of information now being created and stored is created and stored electronically. Though many parties and lawyers, for strategic and other reasons, still prefer to convert electronic data to paper for production in litigation, the percentage of document production that is electronic is growing and the reasons for preferring electronic discovery are becoming more obvious and widely known. The technology facilitating electronic discovery is becoming more accessible. The law of electronic discovery is beginning to emerge, but most issues are so unexplored that judges must still develop much important law. In doing so, courts must be guided as much by principles of basic fairness and good case management in light of the emerging technology, as they are guided by precedent. As U.S. Magistrate Judge Paul W. Grimm has said, "Under Rules 26(b)(2) and 26(c), a court is provided abundant resources to tailor discovery requests to avoid unfair burden or expense and yet assure fair disclosure of important information. The options available are limited only by the court's own imagination. . . ."

[a.2] This article is a practical guide for judges to the main electronic discovery issues likely to be presented in the foreseeable future, and a brief discussion of possible solutions.

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