This book is only available in PDF format

Publication: 31 March 2009
62 Pages

Introduction

Over the last ten years the nature of discovery has been changing in a dramatic way. The increased use of electronic communications has meant that the number of documents relevant to a particular proceeding is often much greater than in the past. Emails, internet access, instant messaging, texting and voicemails all provide a more comprehensive record of our communications and day-to-day conduct than was usually available from paper records. This has had a significant impact on the nature and scope of discovery.

Electronic material often provides an important source of evidence. One of the earliest
uses of the concept of a “smoking gun”,¹ was during the Watergate investigations when
the transcript of a recorded meeting between the Whitehouse Chief of Staff and President Nixon provided compelling evidence of President Nixon’s knowledge of an involvement in political espionage.

It is important for lawyers to appreciate the full extent of potentially discoverable electronic documents that may exist. Computers are not merely “electronic filing cabinets” and the scope of electronic documents extends beyond electronic equivalents of traditional paper documents. An important class of electronic documents are those automatically, and often invisibly, generated during the course of the computer’s operation.

The challenge for the rule-makers is to balance the benefits of electronic discovery against the costs and burdens that can often disillusion litigants and lawyers alike. Lawyers with a sound practical understanding of how to carry out an effective electronic discovery process will ensure that they take best advantage of the positive aspects, while
minimising the costs.

In order to do this, two types of expertise must be combined – the legal professional expertise of a litigation lawyer, and technical and computing expertise required to deal with the more technological aspects of the process. This paper aims to provide an overview of both aspects.

¹ Derived from the Sherlock Holmes story, The Gloria Scott (1893).