The 1970 amendment to FRCP Rule 34⁴³ in the United States and practice under the old RSC Order 24 (which has continued under CRP Part 31)⁴⁴ firmly established that for the purposes of discovery, information in electronic form is to be considered the same as information in conventional paper form.

A growing body of legal, business, and popular literature on electronic discovery, however, presents perceptions that "digital is different." This section is based on analysis of nearly 200 writings on electronic discovery and evidence, ranging from ponderous academic law review articles to mass-circulation press reports, radio, and television.⁴⁵ Some of the perceptions that "digital is different" arise from the volume, portability, and volatility of digital media. Others arise from the new forms of documentation and communication that digital media have fostered. Perhaps the most significant perceptions of difference arise from the clash of paper and digital cultures. Technologists and other experts may legitimately assert that these perceptions are inaccurate or exaggerated, or that the problems presented can be solved with existing or future technology. However, perceptions of discovery, particularly those held by the more vocal sections of the legal profession and the public at large, have been historically more influential in policy formation than empirical data.⁴⁶ In this section, we will state some of the fundamental perceptions of difference, explore their rationale, and ask if they present any serious civil justice policy ramifications .

Electronic discovery is almost universally perceived in the legal and popular literature as something voluminous. The numbers of electronic records that may be subject to discovery are reported to be huge, even in cases involving parties of relatively modest size. This perception is supported by the nature of computerised business processes and the internal logic of computerised document creation and storage, especially in modern client/server network environments.

The electronic discovery literature reports, and common experience confirms, that digital documents are easier and cheaper to copy and distribute than documents committed to paper. Exact duplicates of electronic documents can be created with the touch of a button and distributed world-wide, without regard to the length or complexity of the document. Since these digital documents take up virtually no space, little effort is made to destroy them when they are no longer needed. Most document-creation software, such as word-processing, incorporates redundancy as a matter of course.

The electronic discovery literature reports that the portability of digital documents has dramatically increased the number of locations where potentially discoverable documents may be found. A desktop computer may have several versions or copies of a document on its hard drive. Other versions or copies may be located on the network server. Others may be downloaded and copied onto other desktop computer hard drives. The document may have been copied onto disks, CD-ROMS, or tapes for a variety of purposes. It may be loaded onto a laptop computer for on-the-road use, or transmitted via the Internet to an employee’s home computer for weekend editing. Unlike a paper document, which will usually be found in an identifiable file cabinet, the digital document can, and will, be found anywhere.

The data on computers, especially the data on network servers, will usually be duplicated onto digital storage media on a regular schedule for disaster-recovery purposes, thus creating another copy set of the document (including all pre-existing copies and versions). Ideally, the backup media will be retained for only a few days or a month, and then be destroyed or recycled as is made redundant by subsequent backups. Unfortunately, the legal, popular, and even technical press report that these backups are usually saved. Often the data on the backups (and sometimes the backups themselves) are treated as archival. The data are transferred to more permanent digital or optical media, usually without any selectivity or reference to conventional records-retention policies.

One of the most popular themes in the electronic discovery literature is the recovery of so-called "deleted" data. According to every expert in the field, it is virtually impossible to destroy a virtual document. Like the vampire of legend, it will always return. This effect is attributed to the method used by most computer operating systems to "delete" a document, which is to rename the file and remove it from the internal directory, designating the physical space that it occupies available to be overwritten by new data. The literature points out that such "deleted" data are almost always recoverable, as complete overwriting of every copy and every variation of a document at every location it may be found seldom occurs.

There is general agreement that today in most businesses, government offices, and institutions, the volume of electronic information greatly exceeds the volume of information kept in conventional paper form. Often the issue of volume is confused with the issue of scope, as if the volume of information alone renders the information less relevant to the claims or defences of the parties. However, proposals to address the issue of volume by reducing scope would be misplaced. While a reduction in scope would probably have the effect of reducing volume, it would do so at the expense of the truth-seeking function of discovery.

An alternative managerial approach to the volume problem, avoiding the question of scope, is for the judge to engage in the cost-benefit analysis, called "proportionality," The concept is found in FRCP Rules 26(b)(2)⁴⁷ and stated more explicitly in CPR Rule 31.7(2),⁴⁸ which lists "the number of documents involved" and "the ease and expense of retrieval" as factors to determine the "reasonableness" of a document search. There is a tremendous danger, however, for volume to become an excuse for lack of diligence by the parties in discovery. If volume is viewed in isolation, without reference to the state of the art in electronic records management, retrieval technologies, and the needs of both business and justice, the courts could fall into the trap of rewarding organisations for having outdated, bloated, and poorly organised information systems by exempting them from discovery.

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