Confronting the Future: Coping with Discovery of Electronic Material

The question for the present is whether this new development calls for a reconsideration of our rules or methods of discovery. Ideally, a procedural system should be designed so that it can cope with technological (and other) developments without a major overhaul, and perhaps without any revision. For instance, in 1999, the Supreme Court dealt with the thorny problem of interpreting a 1949 amendment to the removal statute in a case involving a “courtesy copy” of the complaint sent by fax. The court noted that Congress could not have foreseen the use of this technology when it amended the statute in 1949 but did not find that fact critical to interpreting the statute suitably for the era of faxed communications. The question whether the advent of the Internet generation calls for a reexamination of other procedural techniques and rules has divided scholars. Although the Supreme Court has noted that the Internet is “a unique and wholly new medium of worldwide human communication,” that does not mean that existing doctrines governing the limits of personal jurisdiction, for example, must be revised to cope with the new technology. Thus, some scholars argue that personal jurisdiction issues raised by Internet activity can be readily analyzed under the existing legal rules while others see the Internet as upsetting the apple cart of contemporary personal jurisdiction rules. This article addresses similar issues about the rules governing discovery. It first sketches the background of the current rules, for this is not the first time someone has argued that the discovery rules are no longer suitable for the challenges of contemporary discovery, particularly in complex cases. The article then examines the ways in which the discovery of electronically stored materials might present qualitatively different problems from those raised by the discovery of hard copy materials. Against that background, it surveys possible courses of action, by rule amendment or otherwise, and concludes that no clear solution has yet emerged. Indeed, as members of the generation that has seen the most vigorous challenge to unfettered discovery, we might conclude that there is really no generation gap because the types of discovery problems that arise with the new technology are analogous to those presented by hard copy discovery.