Another popular theme throughout the electronic discovery literature is the emergence of new forms of computer-mediated communication. In computerised workplaces tied into world-wide networks, people communicate in ways they have never done before. From a litigation prospective, the most important features of computer-mediated communications are that they are recorded, distributed, and preserved. While these attributes of computer-mediated communication play an important role in American discovery, the effect on British discovery could be revolutionary: Communications, information, and relationships that were heretofore unavailable in discovery because they were undocumented are now routinely documented and subject to disclosure.

In the more recent electronic discovery literature, and in nearly all of the literature found in the popular press, discovery of e-mail is almost synonymous with electronic discovery. The discovery of databases, spreadsheets, or econometric models understandably pales in comparison with the sensational nature of e-mail.

Estimates of the volume of e-mail traffic vary wildly, but even conservative estimates are staggering. In the United States, the press estimates the number of e-mail messages transmitted daily in the billions. Americans are portrayed as addicted to e-mail, and the British are portrayed as catching up quickly. Even for modest-sized organisations the theoretical numbers mount up quickly. One hundred employees in a workplace, each handling an averaging of ten to fifteen e-mail messages per workday, will generate or receive 240,000 to 360,000 messages in a year, before factoring in mass distributions, system redundancies, backups, and other mechanisms for duplication. Unlike the telephone conversations, short meetings, and hallway encounters that e-mail is replacing, these informal exchanges are preserved for discovery purposes.

Much is made in the electronic discovery literature of the informal, revealing, and often embarrassing nature of e-mail. E-mail is considered the window into the corporate soul, and is therefore a highly sensitive area for discovery. The literature also notes a deep disconnect between individuals’ perceptions of e-mail as private and transitory, and the reality of e-mail as a permanent and discoverable corporate record, although only rarely does the literature suggest that this phenomenon has been studied empirically in any other discipline, such as linguistics or psychology.⁴⁹

The literature agrees that e-mail is routinely mishandled or ignored by businesses and government agencies as a records management issue. Surveys presented in the legal and business press indicate a minority of large organisations have e-mail management policies and procedures, even though e-mail is increasingly being used as a medium for conducting substantive business. Therefore, while e-mail may be relevant and important to the issues of the case, e-mail databases usually have no useful organisation or structure to aid discovery efforts. Squarely relevant and wildly irrelevant material will be co-mingled. Privileged and non-privileged communications will be indistinguishable without individual inspection. Significant documents missing from the conventional records collection may be found attached to e-mail.

In the United States, with its tradition of broader discovery, e-mail is inescapable. One theme in the electronic discovery literature is that e-mail must be pursued, as often evidence (particularly of the "state-of-mind" nature) will exist nowhere else. A strong counter-theme is that discovery of email is tantamount to blackmail, as the cost of discovery exceeds the value of the case and forces settlement. This counter theme has found its way into the British legal and popular press. Both of these opposing views are presented with a small number of often-repeated e-mail incidents. No empirical evidence has been brought forward to support the view that the discovery of e-mail, in itself, has tipped the scales of justice in a general way to warrant changes in the scope of discovery or the definition of a "document."

In Britain, the "proportionality" equation considered above in relation to volume will likely come to play in relation to e-mail. But there is a chance again that the courts, if they consider each case in isolation, will reward those organisations with poor records management practices. Part of the proportionality equation must be an assessment of what records management practices a party should be expected to have in place, given the resources and sophistication of the organisation and the environment as a whole.

Some courts have expressed a willingness to reject e-mail entirely as evidence on the basis that it is too informal and unstructured to be considered a "business record" and overcome hearsay objections.⁵⁰ This may also be the view of some attorneys, who are more than willing to ignore it if they could. However, it is too late in the game for this approach to be taken. The electronic records management literature shows that e-mail has moved from an informal message transmission system to an integral part of the business process for many corporations.

a. World Wide Web

E-mail is not the only new form of computer-mediated communication, although it is portrayed in the literature as the most significant. Second to e-mail in the electronic discovery literature is use of the World Wide Web. In both the United States and the United Kingdom, discovery has uncovered cache files (files recording the Internet addresses of Web pages visited and the graphic elements on those pages), cookies (information about the user placed in a file by a Web site operator for quick recall when the user visits again), bookmark files (one-click shortcuts to favourite Web sites, created by the user), and downloaded text and images stored on local hard drives, floppy disks, and even servers. These communications may serve as substantive evidence of wrongdoing (such as copyright infringement), present circumstantial evidence of wrongdoing (such as gambling or pornography distribution), or simply be embarrassing.

b. Chat Rooms and Bulletin Boards

Chat rooms and bulletin boards are relatively new forms of computer-mediated communication subject to discovery. Like Web use, exchanges in these forums may be substantive evidence of libel, fraud, or breach of confidence. Participation may be evidence of infidelity, insider trading, or criminal activity, or discovery of participation could simply be embarrassing. Chat room and bulletin board discovery presents logistical problems, however. Complete transcripts of conversations or postings are seldom kept for more than a few days, so discovery may be confined to records of participation. While it is not unusual for corporations, educational institutions, and even government agencies to sponsor and host chat rooms and bulletin boards, most are hosted by commercial third parties, particularly online service providers. In the United States, discovery of documentation held by third parties in civil cases is difficult,⁵¹ and in the United Kingdom discovery documents held by third parties is rare.

c. Voice Mail and Collaboration Tools

Other forms of computer-mediated communication for which there are no conventionally discoverable counterparts are digital voice mail and collaboration tools. Voice mail is only mentioned occasionally in the literature, and there are no instances cited in which it has actually been disclosed in discovery or used at trial. Collaboration tools, such as virtual sticky notes and virtual white boards, are mentioned only in passing as potentially discoverable documentation. However, there is nothing in theory and little in substance to distinguish these forms of communication from e-mail or chat room participation for the purposes of discovery.

New forms of computer-mediated communication are giving rise to new avenues of discovery that are essential to the claims and defences of both parties in civil litigation. Indeed, many causes of action may be based entirely on evidence to be found in the documentation that these communications generate. As computer-mediated communications become the dominant forms of communication in business, education, government, and even family life, the need for discovery of the resulting documentation will be compelling. There is no doubt that the evolution from informal, unrecorded face-to-face or voice communication to computer-mediated communication increases the volume of material subject to discovery and increases the number of locations which an attorney must check in order to conduct the "reasonable" inquiry required by the discovery rules in both the United States and the United Kingdom. This naturally has an effect on costs and may invoke the "proportionality" provisions of CPR Part 31 or FRCP Rule 26. However, as with the general problem of volume and the problem of e-mail, proposals to address the problems associated with new forms of computer-mediated communication by limiting the scope of discovery would be misplaced.

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