The discovery of electronic documents and e-mail is one of the hottest issues in modern litigation. Lawyers have found that searching an opponent’s electronic storage media – and e-mail servers in particular – can produce a treasure trove of beneficial evidence. Because of the enormous amounts of information that can be stored electronically, e-discovery has dramatically increased the scope and costs of discovery. Discovery requests seeking unrestricted access to information on a company’s hard drives and storage tapes can result in costs that are exponentially greater than in paper discovery. Courts and lawyers have been wrestling with the issue of finding effective ways to reasonably constrain the scope and cost of e-discovery while enabling the parties to pursue legitimate discovery requests. Solutions have ranged from the development of carefully tailored discovery orders grounded in marginal utility analysis to the use by courts of multi-factor cost-shifting tests.

Background Material • Cost Shifting • Discovery Orders • Local Rules