Is Digital Different?

Electronic Disclosure and Discovery in Civil Litigation

By Kenneth J. Withers¹

A new phenomenon has surfaced in civil litigation in the United States, or rather in the media coverage of significant cases. In the Microsoft antitrust litigation,² the investigation of President Clinton by Judge Starr,³ Raytheon Corporation's suit against its own employees for libel,⁴ countless employment-related actions,⁵ and even routine divorce cases,⁶ the evidence takes a new form. E-mail, chat room transcripts, databases, spreadsheets, web browser history files, and information derived from system backup tapes are replacing conventional paper documents.

This phenomenon is not confined to the United States and its tradition of broad discovery. In 1997, the British press reported that insurance giant Norwich Union paid a 6 450,000 settlement to a rival company after disclosure of internal e-mail containing libellous allegations.⁷ In 1999, BG (formerly known as British Gas) paid more than 6 225,000, half of which represented legal fees, to settle a similar case.⁸ As in the United States, e-mail is emerging in UK employment-related litigation.⁹

The legal and business press in other common law countries, such as Canada,¹⁰ South Africa,¹¹ and Australia,¹² have noted the phenomenon. Even in Scotland, proud of its civil law heritage, a commentator in the popular press wrote that "these cases emphasise the growing importance of companies adopting policies to deal with requests [for electronic documentation] that might arise as a result of legal action."¹³

The emergence of evidence in electronic form, and the emergence of entirely new forms of evidence, present a number of cultural, practical, and legal challenges to both bench and bar. This paper concentrates on one area: discovery. Part Two of this paper summarises the rules of discovery, and some of the conflicting philosophies and cultural attitudes towards discovery, in the United Kingdom and the United States. Part Three asks whether "digital is different," and summarises the recurring themes found in approximately 200 academic, professional, business and popular press articles on electronic discovery. Finally, this paper proposes areas in which further research is needed, particularly if changes in civil procedure rules or judicial management are contemplated to address electronic discovery challenges.

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