Companies today face an overwhelming amount of digital information, and many of them are involved at some point in civil litigation. When a company is in the discovery (pretrial) phase of civil litigation, it usually exchanges information, including documents, with the opposing party in the litigation. The Federal Rules of Civil Procedure, which govern civil litigation in federal courts, were amended in 2006 to provide additional guidance to parties with regard to electronically stored information. The management teams of many U.S. corporations are working with their IT departments and lawyers in order to understand the sources of electronically stored information that may be potentially relevant to their litigation. Over the last 20 years, technology has grown increasingly more complex, from the early mainframe and personal computers to sophisticated e-mail and instant messaging applications that enable users to send and receive millions of messages every day. This chapter addresses the issues companies may face related to the discovery of electronically stored information as a result of new communication technologies, including Web 2.0 applications.
TopE-Discovery Background
The United States v. Microsoft case, which was tried in 1998, is a famous civil case in which the United States Department of Justice (DOJ) filed an antitrust claim against the software giant alleging it used its monopoly power of the Windows operating system to bundle its Internet Explorer Web browser. The government claimed that other Web browsers, such as Netscape, were not able to compete in the Web browser market due to Microsoft’s positioning of Internet Explorer within the Windows operating system. The DOJ won in the trial court, but an appeals court overturned the decision and the case later settled. The Microsoft case was full of headlines and was an example of a case where e-mail played a critical role. The DOJ trial lawyers used internal Microsoft e-mails, many authored by senior executives, including Bill Gates, to demonstrate the company’s alleged strategy to “cut off Netscape’s air supply” (United States Department of Justice, 1999).
Civil litigation follows specific procedures. Cases in United States federal courts follow the Federal Rules of Civil Procedure. The Federal Rules define the rules into different categories, including Commencement of Action, Pleadings and Motions, Parties, Deposition and Discovery, Trial, and Judgment. The remainder of this chapter will focus on the discovery phase of civil litigation. During the discovery phase of a case, thousands or even millions of documents may be collected, reviewed, and produced from the files of either party in the lawsuit.
Let us use a hypothetical example to illustrate the process. The Acme Corporation, a fictional product manufacturer, is involved in civil litigation. The case involves a former employee, John Doe. John filed a lawsuit against Acme alleging he was terminated as a result of age discrimination. John Doe, who is the plaintiff, hired a lawyer to represent him in his suit against Acme, the defendant. Acme also hired a law firm to represent it in the case. When the case reached the discovery phase, John’s lawyer asked Acme for documents that related to John’s termination. Acme’s management, working with its lawyers, determined which employees had documents that related to his termination. It instructed specific employees to not discard the documents that related to the issues in the case. Acme’s IT director worked with his management to determine the locations where electronic documents that related to the case were stored.